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1. Mr. Butler is of opinion, that mortgages were introduced less upon the model of the Roman pignus or hypotheca, than upon the common law doctrine of conditions. But upon a view of the Roman hypotheca, it is impossible to withhold our belief, that the English law of mortgages, taken in its most comprehensive sense, was essentially borrowed from the civil law. Thus, in the Roman law, the mortgage could be held as a security for further advances, (Code, 8. 27. 1.) and a covenant that the mortgage should be forfeited absolutely on a default, was void. (Code, 8. 35. 3.) So, a mortgagor was entitled to due notice and opportunity to redeem before his right was extinguished; and the pledge could not be sold, without a protracted notice, or a judicial decree. (Code, 8. 28. 4. Ibid. 34. 3. sec. 1.) The mortgagee was even allowed to tack another encumbrance to his own, and thereby to gain-a preference over an intermediate encumbrance. (Dig. 20. 4. 3.) The analogy might be traced in other important particulars. See Pothier's Pandectee Justinianece, lib. 27. and Dict. du Digest par Thevenot-Dessaules, tit. Hypotheque, passim. In Doctor Brown's View of the Civil Law, vol. i. p. 200-210, the general features of similitude between the Roman hypotheca and the English mortgage, are strongly delineated.
2. Glanville, lib. 10. ch. 6. Nulli liceat feudum vendere vet pignorare sine permissione illius domini. Feud. lib. 2. tit. 55.
3. Co. Litt.,x.05. a. 2 Blacks. Cam. 157.
4. Fulthrope v. Foster, 1 Vern. 476. The Welch mortgage, under its strict contract, without any mitigation of its severity in equity, was analogous to the contract termed antichresis in the Roman law. Dig. 20. 1. 11. 1. It was likewise analogous to the mortgage of lands in the age of Glanville; and he gives to a mortgage, by which the creditor was to receive the rents and profits during the detention of the debt, without account, and without applying them to reduce it, the name of mortuum vadium. It was a hard and unconscientious, but lawful contract; and Glanville, with primeval frankness and simplicity, does not scruple to condemn it as unjust, while he admits it to be lawful; injusta, est et inhonesta. Glan. lib. 10. ch. 6. and 8. The French code civil, no. 2085. has adopted the Roman antichresis, with this mitigation, that the rents and profits are to be applied to keep down the interest, and the surplus, if any, to extinguish the principal.
5. Bro. Abr. tit. Pledges, p1. 20. tit. Trespass, pl. 271. Burnet, J. is Ryall v. Rowley, 2 Vesey, 358. 359. Mores v. Gorham, Owen's Rep. 123. Ratcliff v. Davis, 1 Bulst. 29. Cro. Jac. 244. Yelv. 178. S. C. Comyn's Dig. tit. Mortgage by Pledge of Goods, b. Demaudray v. Metcalfe, Prec. in Ch. 419. Vandezee v. Willis, 3 Bro. 21.
6. Glanville, lib. 10. dh. 6. 8.
7. The Master of the Rolls, in Jones v. Smith, 2 Vesey, jr. 378. Powell on Mortgages, p. Barrow v. Paxton, 5 Johns. Rep. 258. Brown v. Bement, 81bid. 96. McLean v. Walker, 10 Ibid. 471. Garlick v. James, 12 Jbid. 146. Wilde, J. in 2 Pick. 610. Haven v. Law, 2 X.. H. Rep. 13. De Lisle v. Priestman, 1 Brown's Penn. Rep. 176.
8. Inst. lib. 2. tit. 8 sec. 1. Vinnii Com. h. t. Code 8. 35. 3. Perezius on the Code, vol. ii. 62. tit. 34. sec. 4, 5. p. 63. sec. 8. Bell's Com. on the Law of Scotland, vol. ii. 22. 5th edit. Merlin's Repertoire, art. Gage. Code Civil, art. 2078. Institutes of the Laws of Holland, by J. Vanderlinden, translated by J. Henry, Esq. p. 180.
9. Kemp v. Westbrook, 1 Vesey, 278. Demendray v. Metcalf, Pree. in Ch. 419. Vanderzee v. Willis, 3 Bro. 21.
10. Tucker v. Wilson, 1 P. Wms. 261. 1 Bro. P. C. 494. edit. 1784. Lockwood v. Ewer, 2 Atk. 303. Hart v. Ten Eyck, 2 Johns. Chan. Rep. 100.
11. Kemp v. Westbrook, 1 Vesey, 278. N.Y. Revised Statutes. Vol. 1366. tec. 20.
12. Litt. sec. 332.
13. Co. Litt. 210. b.
14. Litt. sec. 337.
15. The Lord Cromwel's case, 2 Co. 79. Litt. sec. 334. Co. Litt. 208. b.
16. Goodell's case, 5 Co. 95. Co. Litt. 210. This case of Goodell, and Wade's case, 5 Co. 114. are samples of the discussions on what was, in the time of Lord Coke, a very momentous question, whether the absolute forfeiture of the estate had or had not been incurred by reason of non-payment at the day. Such a question, which would now be only material as to the costs, was in one of those cases decided on error from the K. B. after argument and debate by all the judges of England.
17. Dey v. Dunham, 2 Johns. Ch. Rep. 182. N.Y. Revised Statutes, vol. i. 756. Harrison v. The Trustees of Phillips Academy, 12 Mass. Rep. 456. Blaney v. Bearce, 2 Greenleaf, 132
18. Lord Talbot, in Cotterell v. Purchase, Cases temp. Talbot, 89. Baker v. Wind, 1 Vesey, 160.
19. Lund v. Lund, 1 X. H. Rep. 39. Bickford v. Daniels, 2 ibid. 71. Runlet v. Otis, ibid. 167. Erskine v. Townsend, 2Mass. Rep. 493. Kelleran v. Brown, 4Mass. Rep. 443. Stocking v. Fairchild, 5 Pick. Rep. 181.
20. Taylor v. Weld, 5Mass. Rep. 109. Cary v. Rawson, 8Mass. Rep. 159. Wharf v. Howell, 5 Binney, 499. Menude v. Delaire, 2 Dessaus. 564. Reed v. Landale, Hardin, 6. James v. Morey, 2 Cowen's Rep. 246. Anon. 2 Hayw. 26. Dabney v. Green, 4 Hen. 8fMunf. 101. Thompson v. Davenport, 1 Wash. Rep. 125. Hughes v. Edwards, 9 Wheat. Rep. 489.
21. Maxwell v. Mountacute, Pree. in Ch. 526. Lord Hardwicke, in Dixon v. Parker, 2 Vesey, 225. Marks v. Pell,! Johns. Ch. Rep. 594. Washburne v. Merrills, 1 Day, 139. Strong v. Stewart, 4 Johns. Ch. Rep. 167. James v. Johnson, 6 Johns. Cle. Rep. 41'7. Clark v. Henby, 2 Cowen's Rep. 324. Murphy v. Tripp, 1 Monroe's Rep. 73. Slee v. Manhattan Company, 1 Page, 48.
22. Bowen v. Edwards, 1 Rep. in Ch. 117. Willett v. Winnell, 1 Vern. 488.
23. Orby v. Trigg, 3 Eq. Cas..fibr. 599. pl. 24. 9 Mod. 2. S. C.
24. Wrixon v. Cotter, 1 Ridgway, 295. Austin v. Bradley, 2 Day, 466. Lord Redesdale, in Hicks v. Cooke, 4 Dow, 16.
25. Ex parte Marsh, 1 Madd. Ch. Rep. 148,
26. N.Y. Revised Statutes, vol. ii. 546. sec. 7. and 14.
27. Munroe v. Allaire, cited in 1 Caines' Cases in Error, 19, Davoue v. Fanning, 2 Johns. Ch. Rep. 252. Downes v. Grazebrook, s Merivale, 200. Slee v. Manhattan Company, 1 Paige,48.
28. Barrell v. Sabine, 1 Vern. 268. Endsworth v. Griffith, 15 Viner, 468. pl. 8. Longuet v. Scawen, 1 Vesey, 405. 1 Powell on Mortgages, 138. note T.
29. Lord Eldon, in Carleton v. Leighton, 3 Merivale. 667. e
30. Doug. Rep. 455.
31. Williams v. Bosanquet, 1 Brod. & Bing. 238. It is, however, said to be better for the mortgagee to take an assignment of the whole time, than an underlease by way of mortgage; for then the right of renewal of the lease will be in him. 1 Powell on Mort. 197. n. 1. By the N.Y. Revised Statutes, vol. i. 739. lands held adversely mass be mortgaged, though they cannot be the subject of grant.
32. Wilson v. Kimbley, 7 East, 128.
33. Floyer v. Lavington, 1 P. Wms. 268. Briscoe v. King, Cro. Jac. 281. Yelv. 206. Lord Hardwicke, in Lawless v. Hopper, 3 Atk. 278. Drummond v. Richards, 2 Munf. 337. This doctrine has been made a statute provision in the N.Y. Revised Statutes, vol. i. 738. sec. 139. where it is declared, that no mortgage shall be construed as immplying a covenant for the payment of the money; and if there be no express covenant for such payment in the mortgage, and no bond or other separate instrument to secure payment, the mortgagee's remedy is confined to the land mortgaged. In Ancaster v. Masses, 1 Bro. C. C. 464. Lord Thurlow, however, intimated very strongly, that though the mortgage was unaccompanied with either bond or covenant, yet that the mortgagee would have the rights of a simple contract creditor, for there was still a debt; but. the statute in New York has disregarded the suggestion.
34. In Edwards v. Cunliffe, 1 Madd. Ch. Rep. 160. the usual order on foreclosure was, that the mortgagor pay in six months, or stand foremclosed. This was afterwards enlarged to six months more, then to five, then to three, and to three again.
35. Roberts v. Bozon, February, 1825. The power to sell inserted in a mortgage, though unknown to Lord Eldon in his early practice, is of a more ancient date than even the life of Lord Eldon, for we find an instance of it in Croft v. Powell, Comyn's Rep. 603. It was there insisted to be a valid power, and the court, without questioning its operation, decided the cause on the ground that the mortgagee had not conveyed an absolute estate under the Lord Eldon's aversion to innovation has grown with his growth, and breaks out on every occasion; but who does not revere, even in his errors, the justum et ten.ar cem propositi virum?
36. Anon. 6 Madd. Ch. Rep. 15.
37. Ibid.
38. Corder v. Morgan, 18 Vesey, 394.
39. N.Y. Revised Statutes, vol. ii. 545. sec. 1 and 2.
40. Bergen v. Bennett, 1 Caines' Cases in Error, 1. Wilson v. Troup, 2 Cowen, 195. N.Y. Revised Statutes, vol. is 735. sec. 108. 737. sec. 133.
41. Wilson v. Troup, ub. sup.
42. Wilson v. Troup, 7 Johns. Ch. Rep. 25.
43. 1 Powell on Mortgages, 61. a. ed. Boston, 1828.
44. Roberts v. Dixall, 3 Eq. Cas. Abr. 668. p1. 19. Kenworthy v. Rate, 6 Vesey. 793.
45. Lingon v. Foley, 2 Ch. Cas. 205. Sheldon v. Dormer, 2 Vern. 310. Trafford v. Ashton, i P. Wms. 415. Allan v. Backhouse, 2 Ves. & Beam. 65.
46. Joy v. Gilbert, 2 P. Wms. 13. Mills v. Banks, 3 ibid. 1.
47. Isherwood v. Oldknow,, 3 Maule & Selw. 382. Sugden on Powers, 447. 449. 2d London ed.
48. N.Y. Revised Statutes, vol. i. 786. sec. 119, 120,121.
49. Sir T. Jones, 201.
50. 1 Simon 8r Stuart, 507.
51. Sir Joseph Jekyll, in Evelyn v. Evelyn, 2 P. Wms. 661. 14 Viner, 240. p1.11.
52. See Coote's Treatise on the Law of Mortgages, p. 147. to 163. and 1 Powell on Mortgages, p. 74. to 100. Boston ed. 1828, where the numerous cases on this question are collected; and the review of them becomes a matter of astonishment when we consider the ceaseless litigation which has vexed the courts on such a point. Most of the great names which have adorned the English chancery from the reign of Charles IL, when the first adjudication was made, down to the present day, have expressed an opinion, either for or against the expemdiency and solidity of the rule. Such a contingent limitation to trustees, as the one in the instance stated, would be too remote and void under the N.Y. Revised Statutes, vol. i. 723. sec. 14-17.; but the great point touching the power to sell or mortgage the remainder to raise portions, may arise in New York, as well as elsewhere.
53. 1 Bro. 269.
54. 2 Azast. 427.
55. Ex parte Haigh, 11 Vesey, 403. Norris v. Wilkinson, 12 ibid. 192. Ex parte Hooper, 19 ibid. 477.
56. Ex pate Whitbread, 19 Vesey, 209. Lord Ellenborough, in Doe v. Hawke, 2 East's Rep. 486. Ex parte Kensington, 2 Ves. & Beam. 79.
57. Ex parte Coombe, 4 Madd. Rep. 133. Lucas v. Dorrien, 7 Taunt. Rep. 279. Ex parte Coming, 9 Vesey, 115. Ex parte Bulteel, 2 Cox, 243. Norris v. Wilkinson, 12 Vesey, 192. Ex parte Pearse, l Buck. B. C. 525.
58. Berry v. Mutual-Ins. Company, 2 Johns; C1. Rep. 603.
59. Chapman v. Tanner, 1 Vern. 267. Lord Hardwicke, in Walker v. Preswick, 1 Vesey, 622. Lord Eldon, in Austin v. Halsey, 6 Vesey, 483. Sir Wm. Grant, in Naire v. Rowse, Ibid. 759. Hughes v. Kearney, 2 Sch. 4 Lef. 132. Meigs v. Dimock, 6 Conn. Rep. 458.
60. 15 Vesey, 329.
61. Dig. lib. 18. tit. 1. 1. 19.
62. Cole v. Scot, 2 Wash. 191. Cox v. Fenwick, 3 Bibb. 183. Carson v. Green, 1 Johns. Chan. Rep. 308. Fish v. Howland, 1 Paige, 20. Bayley v. Greenleaf, 7 Wheaton, 46. Gilman v. Brown, 1 Mason's Rep. 191. Watson v. Wells, 5 Conn. Rep. 468. Jackman v. Hallock, 1 Hammond's Ohio Rep. 318. But this doctrine of an equitable lien for the purchase money has been judicially declared not to exist in Pennsylvania, though it had previously been assumed to exist there by very distinguished judges. Kauffelt v. Bower, 7 Serg. & Rawle, 64. Semple v. Burd, Ibid. 286. It is said also not to have been adopted in all its extent in Connecticut. Daggett, J. 6 Conn. Rep-464.
63. Nairn v. Prowse, 6 Vesey, 752.
64. 2 Ves. & Beam. 306.
65. Gilman v. Brown, 1 Mason, 191. 4 Wheaton, 255. S. C. In the Roman law, from whence the doctrine of the vendor's lien is supposed to be derived, the absolute property passed to the buyer if the seller took another pledge, or other personal security; venditee vero res et traditie non aliter emptori acquiruntur, quam si is venditori pretium solverit, vel olio modo ei satisfecerit, veluti expromissore aut pignore dato. Inst. 2. 1. 41. Hoc nomine fidejussor, hie intelligi videtur. Vinnius in Inst. h. t.
66. Bayley v. Greenleaf, 7 Wheaton, 46.
67. Finch v. Earl of Winchelsea, 1 P. Wins. 277. The question, whether taking a bond or bill destroyed the lien, has been quite a. vexed one in the hooks.. In Fawell v. Healis, Amb. 724. taking a bond was considered to have destroyed the lien. In Blackburn v. Gregson, 1 Bro. 420. 1 Cox, 90. S. C. the question was raised and left undecided, though Lord Loughborough said, he had a decided remembrance of a case, where it was held the lien continued, although a bond was given. In Winter v. Anson, 1 Simon 6; Stuart, 434. it 'vas held, that there was no lien where the bond was taken for the purchase money, payable at a future day, with interest. It was dedecided to the same effect in Wragg v. the Comptroller-General, 2 Dess. S. C. R. 509. But we have decisions directly to the contrary, in White v. Casanove, i Hayw. 6; Johns. 106. Cox v. Fenwick, 2 Bibb. 183. and Kennedy v. Woolfolk, 3 Hayw. 197. and Mr. Justice Story also draws a contrary conclusion, in Gilman v. Brown, 1 Mason's Rep. 214.; and he considers a note, bond, or covenant from the vendee, 'to be consistent with the preservation of the lien. The same opinion is given in Kennedy v. Woolfolk, 3 Haywood, 197. and in Fish v. Howland, l Paige, 20. where this doctrine of lien is laid down, with comprehensive, accuracy and precision.
68. Birch v. Wright, 1 Term Rep. 378. Buller, J. Rockwell v. Bradley, 2 Conn. Rep. 1. Blaney v. Bearce, 2 Greenleaf, 132. Erskine v. Townsend, 2 Mass. Rep. 493. Parsons, Ch. J. in Newall v. Wright, s Mass. Rep. 138. Colman v. Packard, 16 Ibid. 39. Simpson v. Ammons, 1 Binney, 176. McCall v. Lenox, 9 Serg. & Rawle, 302, though I should infer from the language of the last case cited, that the ejectment would not lie until after a default.
69. See the opinion of Jackson, J. in Fitchbury Cotton Man. Co. v. Melven, 15 Mass. Rep. 268. and the case of Wilder v. Houghton, 1 Pick. 87.
70. Runyan v. Mersereau, 11 Johns. Rep. 534. Jackson v. Bronson, 19 Ibid. 325. Dickenson v. Jackson, 6 Cowen, 147.
71. Powsely v. Blackman, Cro. Jac. 659.
72. Keech v. Hall. Doug. 21. Moses v. Gallimore, Ibid. 279. Buller, J. in Birch v. Wright, 1 Term Rep. 383. Thunder v. Belcher, 3 East, 449. Sir Thomas Plumer, in Christopher v. Sparke, 2 Jac. 4 Walk. 1234. 5 Bingham, 421. With respect to notice to quit, the American authorities differ. In Massachusetts, Connecticut, and Pennsylvania, and probably in other states, the English rule is followed, and the notice is not requisite. Rockwell v. Bradley, 2 Conn. Rep. 1. Wakenan v. Banks, Ibid. 445. Groton v. Boxborough, 6 Mass. Rep. 50. Duncan, J. in 9 Serg. & Rawle, 311. But in New York, by a series of decisions, notice to quit was required before the mortgagor could be treated as a trespasser, and subjected to an action of ejectment. It was required, on the ground of the privity of estate, and the relationship of landlord and tenant, and which is a tenancy at will by implication; but the rule did not apply to a purchaser from the mortgagor, for there the priority had ceased. Jackson v. Laughhead, 2 Johns. Rep. 75. Jackson v. Fuller, 4 Ibid. 215. Jackson v. Hopkins, 18 Ibid. 487. But now by the N.Y. Revised Statutes, vol. ii. 312. sec. 57. all this doctrine of notice is superseded, and the action of ejectment itself, by a mortgagee or his assigns or representatives, abolished. The mortgagee is driven to rely upon a special contract for the possession, if he wishes it, or to the remedy by foreclosure and sale, upon a default; and this alteration in our local law would appear to be a reasonable provision, and a desirable improvement. The action of ejectment not being a final remedy, is vexatious, and the possession under it terminates naturally in a litigious matter of account, and a deterioration of the premises.
73. Patridge v. Bere, 5 Barnw. & Ald. 604.
74. Buller, J. in Birch v. Wright, 1 Term Rep. 383. Sir Thomas lumer, in Cholmondelly v. Clinton, 2 Jac. 8; Walk. 183. Coote on the Law of Mortgage, 327-334. Coventry's Notes to 1 Powell, 1.57. 175. edit. Boston, 1821..
75. 1 Powell, 159. note 160-162. See also Thunder v. Belcher, 3 East. 449.
76. Jackson, J. in 15 Mass. Rep. 270. Parker, Ch. J. 1 Pick. 90. Duncan, J. 9 Serg.& Rawle, 311. N.Y. Revised Statutes, vol. ii. 312.
77. Emanuel College v. Evans, 1 Rep. in Ch. 10. In the case of Rosecerrick v. Barton, 1 Cases in Ch. 217. Sir Matthew Hale, when Chief Justice, showed that he had not risen above the mists and prejudices of his age on this subject, for he complained very severely of the growth of equities of redemption, as having been too much favored, and been carried too far. In 14 Richard II. the Parliament, he said, would not admit of this equity of redemption. By the growth of equity, the heart of the common law was eaten out. He complained that an equity of redemption was transferrable from one to another, though at common law a feoffment or fine would have extinguished it; he declared he would not favor the equity of redemption beyond existing precedents.
78. 1 Yarn. 7. 2 Vent. 364. 1 Vern. 232. V. C.
79. 1 Vern. 190.
80. In Seton v. Slade, 7 Vesey, 273. Lord Eldon observed, that the doctrine of the court gave countenance to the strong declaration of Lord Thurlow, that no agreement of the parties would alter the right of redemption. And as to the recognition of the doctrine with us, see Holdridge v. Gillespie, 2 'Johns. Ch. Rep. 30. Clark v. Henry; 2 Cowen's Rep. 324. Wilcox v. Morris, 1 Murphy, 117. In Newcomb v. Bonham, 1 Vern. 7. Lord Nottingham held, that the mortgagee might compel the mortgagor, at any time, to redeem, or be foreclosed, even though there was a special agreement in the mortgage that the mortgagor was to have his whole lifetime to redeem; but his successor, on a rehearing, (1 Vern. 232.) reversed his decision, and held, that the party had his whole lifetime, according to his contract; and this last decree was affirmed in Parliament.
81. Casborne v. Scarfe, 1 Atk. 603. 2 Ac. 8J Walk. 194. note S. C.
82. The King v. St. Michaels, Doug. Rep. 630. The King v. Edington, 1 East's Rep. 288. Jackson v. Willard, 4 Johns. Rep. 41. Runyan v. Mersereau, 11 ibid. 534. Huntington v. Smith, 4 Conn. Rep. 235. Willington v. Gale, 7 Mass. Rep. 138. McCall v. Lenox, 9 Serg. & Rawle, 302. Ford v, Philpot, 5 Harr. 8r Johns. 312. Wilson v. Troup, 2 Cowen's Rep. 195. Eaton v. Whiting, 3. Pick. Rep. 484. Blaney v. Bearce, 2 Greenleaf, 132. The growth and consolidation of the American doctrine, that until foreclosure the mortgagor remains seized of the freehold, and that the mortgagee has, in effect, but a chattel interest, was fully shown, and ably illustrated, by the Chief Justice of Connecticut, in Clark v. Beach, 6 Conn. Rep. 142.; and these general principles were not questioned by the court.
83. Lyster v. Dolland, 1 Vesey; jun. 431. Scott v. Scholey, 8 East's Rep. 467. Metcalf v. Scholey, 5 Bos. & Pull. 461.
84. Plunket v. Penson, 2 AM. 290. 1 Vesey, jun. 436. S. C.
85. Waters v. Stewart, 1 Caines' Cases in Error, 47. Hobart v. Frisbie, 5 Conn. Rep. 592. Ingersoll v. Sawyer, 2 Pick. Rep. 276. Ford v. Philpot, 5 Harr. 4 Johns. 312. New Hampshire would appear, however, to form an exception to the general practice of selling an equity of redemption on execution at law. Woodbury, J. in 2 N, F Rep. 16.
86. Jackson v. Willard, 4 Johns. Rep. 41. Blanchard v. Colburn, 16 Mass. Rep. 345. Eaton v. Whiting, 3 Pick. Rep. 484. Huntinton v. Smith, 4 Conn. Rep. 035.
87. Thornborough v. Baker, 3 Swanst. Rep. 628. Tabor v. Tabor. ibid. 636.
88. Lord Hardwicke, in Robinson v. Litton, 3 Rile. 209.!bid. 723, Brady v. Waldron, 2 Johns. Ch. Rep. 148.
89. Peterson v. Clark, 15 Johns. Rep. 205.
90. Smith v. Goodwin, 2 Greenleaf, 173. Stowell v. Pike, ibid. 2P,-,
91. Campbell v. Macomb, 4 Johns. Ch. Rep. 534.
92. Lord Ch. B. Comyns, in Jones v. Meredith, Comyn's Rep. 670. Bateman v. Bateman, Prec. in Ch. 197. Sharpe v. Scarborough, 4 Vesey, 538. 1 Powell on )mortgages, 312. 369. in notis. Grant V. Duane, 9 Johns. Rep. 591. Hill v. Holliday, 2 Litt. 332. Smith V. Manning, 9 Mass. Rep. 422. Bird v. Gardner, 10 ibid. 364.
93. Anon. 3 Atk. 313.
94. The Master of the Rolls, in Palk v. Clinton, 12 Vesey, 59. Calkins v. Munsell, 2 Root's Rep. 333.
95. Shirley v. Watts, s AM. 200. Brinckerhoof v. Brown, 4 John's. Ch. Rep 671.
96. In New Jersey, Delaware, South Carolina, and Mississippi, equity powers reside in, and are exercised by, distinct and independent tribunals upon the English model. This was also the case in New York until 1823, but now the exclusive jurisdiction in equity is withdrawn from the chancellor, and equity powers are partially vested in the circuit judges as vice-chancellors, and they exercise, in distinct capacities, a mixed jurisdiction of law and equity. The same mixed, jurisdiction is partially conferred on the county courts in Maryland and Virginia, and on the circuit courts in Missouri, and exercised concurrently with the chancellors in those states. In the states of Vermont, Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Ohio, Illinois, Kentucky, Tennessee, North Carolina, and Alabama, the jurisdiction of law and equity is vested in one tribunal; though, in some of those states, chancery powers are confined to a few specified objects; and in Louisiana, the distinction between law and equity, according to the theory of the English law, seems to be entirely unknown. In Massachusetts, the equity powers of the supreme judicial court are very limited. The power to enforce redemption is confined to a statute provision, and the mortgagor must redeem in three years after entry by the mortgagee. See Erskine v. Townsend, 2,Mass. Rep. 493. Kelleran v. Brown, 4 ibid. 443. Skinner v. Brewer, 1 Pick. Rep. 468. Jackson on Real Actions, p. 49. In Pennsylvania, equity powers have been gradually assumed by their Supreme Court, from the necessity of the case, and for the advancement of justice, with the aid of a few legislative provisions. The principles of equity in Pennsylvania have been digested from the acts of the legislature, and the decisions of the Supreme Court, with diligence, ability, and judgment, in a clear and neat little code of equity law, under the unpretending title of An Essay on Equity in Pennsylvania, by Anthony Lausset, jun., Student at Law, 1826."
97. Sir Wm. Harbert's case, 3 Co. 14. 1 Powell on Mortgages, 342. b. Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Scribner v. Hickok, 4 ibid. 530.
98. Lord Hardwicke, in Mead v. Lord Orrery, 3 Atk. 244. and Higgins v. York Buildings Company, 2 Atk. 107. Parker, Ch. J. in Wilder v. Houghton, 1 Pick. 90.
99. Moss v. Gallimore, Doug. Rep. 279. Buller, J. in Birch v. Wright, 1 Term Rep. 378.
100. 2 Bing. 54.
101. Ex parte Wilson, 2 Ves. & Beam. 252.
102. Sanders v. Van Sickle and Garrison, 3 Halsted, 31'3. McKircher v. Hawley, 16 Johns. Rep. 289.
103. Jones v. Clark, 20 Johns. Rep. 51. Magill v. Hinsdale, 6 Cone. Rep. 464.
104. N.Y. Revised Statutes, vol. i. 744. sec. S. New Jersey Revised Laws, 192. sec. 1-7. 3 Halsted, 317.
105. Anon.1 Vern. 44. 1 Eq. Cas. Abr. 328. pl. 1 Robertson v: Campbell, 2 Call, 428. Ballinger v. Worsley, 1 Bibb. 195.
106. Williams v. Price, 1 Sim. 8; Stu. 581. 3 Powell on Mortgages, 949. a. note. Hughes v. Williams, 12 Vesey, 493
107. Bonethon v. Hockmore, 1 Vern. 816. French v. Baron, 2 Atk. 120. Godfrey v. Watson, 3 ibid. 517. Langstaffe v. Fenwick, 10 Vesey, 405. Davis v. Dendy, 3 Madd. Ch. Rep. 95.
108. Moore v. Cable, 1 Johns. Ch. Rep. 385. Breckenridge v. Brooks, 2 Marshall, 339. Gibson v. Crehore, 5 Pick. 146.
109. Godfrey v. Watson, 3 Atk. 517. Lord Alvanley, in 4 Vesey, 480. Moore v. Cable, 1 Johns. Ch. Rep. 385. Saunders v. Frost, 8 Pick. 259.
110. Exton v. Greaves, 1 Vern. 138. Talbot v. Braddill, ibid. 183. note.
111. In Conway v. Alexander, 7 Cranch, 218. the Circuit Court for the District of Columbia, directed an allowance for permanent improvements; and though the decree Was reversed on appeal, that point was not questioned. So, in Ford v. Philpot, 5 Harr. 4 John&. 312. a similar allowance was made in chancery, and that point was untouched in the Court of Appeals. In Russell v. Blake, 2 Pick. 505. it was said, that the mortgagee could not be allowed for making any thing new, but only for keeping the premises in repair. All the cases agree, that the mortgagee is to be allowed the expense of necessary repairs, and beyond that the rule is not inflexible, but it is subject to the discretion of the court, regulated by the justice and equity arising out of the circumstances of each particular case.
112. Holdridge v. Gillespie, 2 John&. Ch. Rep. 30.
113. N.Y. Revised Statutes, vol. i. 756. sec. 1. Ibid. 762. sec. 3'7. The term purchaser, in the statute, is declared to embrace every mortgagee, and his assignee.
114. In Pennsylvania, no deed or mortgage is good unless recorded in six, and in Delaware, no mortgage is good unless recorded in twelve months; and in Massachusetts, Rhode Island, Connecticut, and some other states, the deed does not operate until recorded, except as between the parties and their heirs. In Ohio, deeds must be recorded in six months, and an unrecorded deed is void against a subsequent purchaser for valuable consideration, without notice of the deed, whether the subsequent deed be, or be not recorded.
115. Com. de l'Ord. de Louis XV. sur les Substitutions, par JK. Furgole, cited by Mr. Butler, note 249. sec. 11. to lib. 3. Co. Litt. Pothier, Traité des Substitutions, art. 4. sec. 6.
116. Code Civil, No. 1071, Le Defaut de transcription ne pourra Ere supplde ni regarde, comme couvert par la connaiasance que lea creanciers ou let tiers acquereurs poarraient avoir eue de la disposition par d'autres vaies que celle de la transcription. This regulation is almost in the very words of the ordinance respecting French entails promulgated under the auspices of Chancellor D'Aguesseau. (Euvres D'.A,,uue.vseau, t. 12. p. 476. oct. ed.
117. Davis v. The Earl of Strathmore, 16 Vesey, 419. '
118. 3 Atk. 646. 1 Ves. & Beam. 436. S. C.
119. Code Civil, n. 941. Mr. Butler and Mr. Miller discover a strong partiality for the French rule, and they consider the English doctrine to be another sample of judicial legislation, such as the introduction of common recoveries to bar entails, and the revival of uses under the name of trusts; and they insist, that it is now so inconvenient as to be generally lamented. Butler's Reminiscences, vol. i. p. 38.,Miller's Inquiry into the Civil Law of England, p.-304. Mr. Humphrey, in his Outlines of a Code, p. 324. will not allow notice of any kind to disturb the order and priority of registration, and he is very hostile to the equity doctrine of notice. There is no doubt that the doctrine of notice, replete as it is with nice distinctions, is troublesome. But the law would not be a science luminous with intelligence, humanity, and justice, if it did not abound in refinements. General, and inflexible rules, without modification or exceptions, would be tyrannical and cruel, like the bed of Procrustes, or the laws of Draco. It is in vain to think of governing a free and commercial people, abounding in knowledge and wealth, by a code of simple and brief rules. Subtlety will be exerted to evade them, and use them as instruments to circumvent. The tide of improvement necessarily carries with it complicated regulations, and the wants and vices of civilized life, and the activity and resources of a cultivated intellect, inevitably introduce ten thousand refinements in the civil law.
120. Farnsworth v. Childe, 4 Mass. Rep. 637. McMechan v. Griffing, 3 Pick. 149. Taylor v. McDonald, 2 Bibb, 420. Guerrant v. Anderson, 4 Randolph, 208. Jackson v. Sharp, 9 Johns. Rep. 164. Jackson v. Burgott, 10 Johns. Rep. 457. Roads v. Symmes, 1 Hammond, 281. Muse v. Letterman, 13 Serg. & Rawle, 167. Hudson v. Warner, 2 Harr. 81 Gill, 415. In the case of Righton v. Righton, 1 Const. Court, S. C. 130. it was said to be doubtful, whether a purchaser with notice was bound by a deed unrecorded; but other cases in that state put this point out of doubt, and hold him bound. Forrest v. Warrington, 2 Dess. 254. Tait v. Crawford, 1 M 'Cord, 265.
121. Lord Hardwicke, in Hine v. Dodd, 2 Atk. 275. Lord Alvanley, in Jolland v. Stainbridge, 3 Vesey, 478. Jackson v. Elston, 12 Johns. Rep. 452. Dey v. Dunham, 2 Johns. Ch. Rep. 182. McMechan v. Griffing, 3 Pick. 149.
122. 8 Johns. Rep. 137. 1 Hammond's Ohio Rep. 281.
123. Cushing v. Hurd, 4 Pick. 253.
124. 10 Johns. Rep. 457.
125. 5 Barnw. & Ald. 142.
126. Jackson v. Dubois, 4 Johns. Rep. 216. Jackson v. Terry, 13 Ibid. 471. Jackson v. Town, 4 Cowen, 605. Ash v. Ash, 1 Bay, 304. Ash v. Livingston, 2 Ibid. 80. Penman v. Hart, ibid. 251. Hamilton v. Levy, 1 McCord's Ch. Rep. 114.
127. Semple v. Burd, 7 Serg. & Rawle, 288.
128. N.Y. Revised Statutes, vol. i. p. 749. sec. 5.
129. Latouche v. Dusenberry, 1 Sch. 4 Lef. 157. Bushell v. Bushell, ibid. 90. See also the opinion of Sergeant Hill, in 4 Madd. Ch. Rep. 286. note.
130. Morecock v. Dickins, mb. 678.
131. Johnson v. Stagg, 2 Johns. Rep. 510. Frost v. Beekman, 1 Johns. Ch. Rep. 298. 18 Johnson, 544.. S. C. Peters v. Goodrich, 3 Conn. Rep. 146. Hughes v. Edwards, 9 Wheaton, 489. Thayer v. Cramer, 1 McCord's Ch. Rep. 395. Evans v. Jones, 1 Yeates, 174.
132. Heister v. Fortner, 2 Binney, 40. Hodgson v. Butts, 3 Cranch, 140. Frost v. Beekman, 1 Johns. Ch. Rep. 300. But see Morrison v. Trudeau, in Chrysty's Dig, of Decisions in Louisiana, tit. Mortgages, 4. pl. 8. where such a deed is said to operate as notice to third persons.
133. Shuttleworth v. Laycock, 1 Vern. 245. Baxter v. Manning, ibid. 244. Anon. 3 Salk. 84.
134. This was clearly and learnedly shown by Mr. Justice Jackson, in 15 Mass. Rep. 407. and see supra, pa. 130.
135. Troughton v. Troughton, 1 Vesey, 86. Anon. 2 ibid. 662. Heams v. Bance, 3 Atk. 630. Powis v. Corbat, ibid. 556. Lowthian v. hastel, 3 Bro. 162. Hamerton v. Rogers, 1 Vesey, jun. 513. Lord Alvanley, in Jones v. Smith, 2 Vesey, jun. 376.
136. Gardner v. Graham, 7 Viner's Abr. 52. E. p1. 3. Lyle v. Ducomb, 5 Binney, 585. Hughes v. Worley, 1 Bibb. 200. Liyingston v. McInlay, 16 Johnson, 165. Hendricks v. Robinson, 2 Johns. Ch. Rep. 309. Brinckerhoff v. Marvin, 5 ibid. 326. James v. Johnson, 6 ibid. 420. Skirras v. Caig, 7 Cranch, 34. Story, J. in Conard v. The Atlantic Insurance Company, 1 Peters' U. S. Rep. 448.
137. Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pasco, 5 ibid. 442. St. Andrew's Church v. Tompkins, 7 Johns. Ch. Rep. 19.
138. Ex parte Hooper, 19 Vesey, 477.
139. Heineccii, Elem. Jur. Civ. secund. ord. Pand. b. ii. tit. 4. sec. 35. Opera, tom. 5. Part 2. p. 350.
140. Lord Elden, 11 Vesey, 619..
141. 2 Vent. 337.
142. 2 P. Wms. 491.
143. The law established by these decisions has been regularly transmitted down in Westminster Hall unshakenly to this day. Belchier v. Butler, 1 Eden, 523. Frere v. Moore, 8 Price, 475.
144. 1 Sch. 4 Lef. 157. 430. In McNeil v. Cahill, 2 Bligh, 228. on appeal to the House of Lords, in an Irish case, it was declared, that if the deed posterior in date and execution, be first registered, even with notice of the other deed, it has priority both in law and equity, but this does not apply to the case of a fraudulent priority of registry.
145. Grant v. U. S. Bank, 1 Caines' Cases in Error, 112. Feb. 1804. This was the earliest case that I am aware of in this country, destroying the system of tacking. In that case, I had the satisfaction of hearing that profound civilian, as well as illustrious statesman, General Hamilton, make a masterly attack upon the doctrine, which he insisted was founded on a system of artificial reasoning, and encouraged fraud See also, 11 Serg. & Rawle, 223. 3 Pick. 50. 6. munf. 560.
146. i Haines v. Beach, 3 Johns. Ch. Rep. 459.
147. The law concerning notice, express aud implied, is very amply discussed by Mr. Coventry, in his notes to Powell on Mortgages, tool, ii. ch. 14. p. 561-662. and the American editor, Mr. Rand, has, with a thorough accuracy, collected all the cases and decisions in this country appertaining to the subject. The immense body of English learning with which Mr. Coventry has enriched every part of the original work of Powell, is not only uncommon, but very extraordinary. There never were two editors who have been more searching, and complete, and gigantic in their labors. The work has become a mere appendage to the notes, and the large collections of the American editor, piled upon the vastly more voluminous commentaries of the English editor, have unitedly overwhelmed the text, and rendered it somewhat difficult for the reader to know, without considerable attention, upon what ground he stands.
- ossce frondosum involvere olympum.
I acknowledge my very great obligations to those editors for the assistance I have received from their valuable labors; but I cannot help thinking, that Mr. Coventry would have better accommodated the profession, if he had written an original treatise on the subject, and we should then probably have had, what is now wanting in the present work, unity of plan, adaptation of parts, and harmonious proportion. Several of his essays in the notes, as, for instance, those relating to receivers-equitable assets-voluntary settlements- the wife's equity-when debts, as between the representatives of the deceased, are to be charged upon the real, and when on the personal estate-interest and usury, etc. have no very close application to mortgages. Mr. Coote's "Treatise on the Law of Mortgage," is neat, succinct, and accurate, and free from several of the objections which have been suggested.
148. Mondey v. Mondey, 1 Ves. & Beam. 223.
149. Johns. Ch. Rep. passim. Nelson v. Carrington, 4 Munf. 332. Downing v. Palmateer, 1 Monroe, 66. Humes v. Shelby, 1 Tenn. Rep. 79. Hurd v. James, ibid. 201. Rodgers v. Jones, 1 McCord's Ch. Rep. 221. Paunell v. Farmers' Bank, 7 Barr. 4 Johns. 202. David v. Grahame, 2 Harr. 8f Gill, 94.
150. Lockwood v. Lockwood, 1 Day, V5. Lyon v. Sanford, 5 Conn. Rep. 544. Swift's Dig. vol. ii. 656. 683. Erskine v. Townsend, 2 Mass. Rep. 493. Baylies v. Bussen, 5 Greenleaf, 153. Swett v. Horn, 1 N. R. Rep. 332. The practice of a strict foreclosure has also been allowed in North Carolina. Spiller v. Spiller, 1 Hayw. 482.
151. Edwards v. Cunliffe, 1 Madd. Rep. 287. Perine v. Dunn 4 Johns. Ch. Rep. 190.
152. 2 Bro. 125. Dickens, 785. S. C.
153. Dashwood v. Blythway, 1 Eq. Cas. Abr. 317. pl. 3. Mosely, 196. S. C. Perry v. Barker, 13 Vesey, 198.
154. Lord Thurlow's opinion, as represented by Sir Samuel Romilly, and by Lord Eldon, in Perry v. Barker, 8 Vesey, 527. Hatch v. White, 2 Gallis. 152. Amory v. Fairbanks, 3 Mass. Rep. 562. Globe Ins. Co. v. Lansing, 5 Cowen, 380. Omaly v. Swan,3 Mason, 474.
155. Booth, v. Booth, 2 Atk. 343. Burnell v. Martin, Doug. 417. Schoole v. Sall, 1 Sch. 4 Lef. 176. Dunkley v. Van Buren, 3 Johns. Ch. Rep. 330. Hughes v. Edwards, 9 Wheat. Rep. 489.
156. 2 Johns. Ch. Rep 125.
157. The N.Y. Revised Statutes, vol. ii. 368. sec. 31, 32. have carried the suggestion into effect, and prohibited the sale at law of the mortgagor's equity by the mortgagee, on a judgment for the debt secured by the mortgage. In Massachusetts, likewise, similar embarrassments have been felt, and the law there is, that the mortgagee cannot sell the equity of redemption in discharge of a debt secured by the mortgage. Atkins v. Sawyer, 1 Pick. 351. The N.Y. Revised Statutes have, in other respects, materially changed the established practice ou this subject. It is now declared, that while a bill of foreclosure is pending in chancery, and after a decree thereon, no proceedings shall be had at law for the recovery of the debt, without the authority of the Court of Chancery; and, on the other hand, if a judgment has been. obtained at law for the mortgage debt, or any part of it, no proceedings are to be had in chancery, unless an execution has been returned unsatisfied in whole or in part, and it be stated in the return. that the defendant had no property to satisfy it except the mortgaged premises. N.Y. Revised Statutes, vol. ii. 191. sec. 153. 156. The statute goes on and declares, that if the mortgaged premises should prove insufficient to satisfy the debt, the Court of Chancery has power to direct the payment by the mortgagor of the unsatisfied balance, and to enforce it by execution against the other property, or the, person of the debtor. (ibid. sec. 152.) As the action of ejectment upon a mortgage is abolished, (ibid. p. 312. sec. 57.) the jurisdiction at law over the debt, as well as over the pledge, would appear by these provisions to be taken away and transferred to chancery at the election of the e mortgagee. The alteration has affected a general principle, and its propriety in this latter extent of it, may be questioned. The object of the provision undoubtedly was, to give unity and simplicity to the remedy, and prevent unnecessary expense; but as the law stood before the statute, the creditor was obliged to resort to law upon his bond, for the unsatisfied portions of his debt, after the proceeding in rem had been exhausted; and if the debtor had any defense by payment, release, insolvent's discharge, or otherwise, he was enabled to have it decided before the common law tribunal for the trial of matters of fact, and of that tribunal he is now deprived at the election of the creditor.
158. Godfrey v. Chadwell, 2 Vern. 601. Morret v. Westerne, 2. Vern. 663. Hobart v. Abbott, P. Wm.a. 643. Fell v.. 'Brown, 2 Bro. T'16. Bishop of Winchester v. Beavor, 1 Vesey, 314. Sherman v. Cox, 3 Ch. Rep. 46. Haines v. Beach, 3 Johns. Ch. Rep. 459. Lyon ySaudford, 5 Conn. Rep. 544. Renwick v. Macomb, 1 Hop*. 277. The English practice is to settle by decree the order of payment according to priorities, and the decree is, in detail, that the second encumbrancer shall redeem the first, the third the second, and so on. See Mondey v. Mondey, 1 Ves. & Beam. 223. and 3 Merivale, 216. note.
159. The N. 1. Remised Statutes, vol. ii. 192. sec. 158. declare, that the deed to the purchaser at a sale under the decree of foreclosure, shall be an entire bar against all the parties to the suit, and their heirs respectively, but the statute goes no further.
160. The N.Y. Revised Statutes, voL ii. 192. sec. 159; 160. direct the surplus arising upon the sale to be brought into court for the use of the defendant,-or of the person who may be entitled thereto, subject to the order of the court, and if not called for in three months, it is to be put out at interest for the benefit of the defendant, his representatives or assigns.
161. Penniman v. Hollis, 13 Mass. Rep. 429. On a sale by the mortgagee, in the lifetime of the mortgagor, the surplus is personal estate, but if the Bale he after the mortgagor's death, the surplus, as well as the equity of redemption, belongs to his' heir. Wright v. Rose, w Sim dr_Stte: 32 Moses v. Murgatroyd, 1 Johns. Ch, Rep. 130.
162. Com. Dig. tit. Chancery, 4. A. 9. Demarest V. Wynkoop, 3 John*. Ch. Rep. 145. Scott v. Macfarland, 13 Mass. Rep. 309. Grace v. Hunt, Cooke's Tenn. Rep. 344. Denn v. Spinning, 1 Hal-sted's Rep. 471. The cases, as to parties, are collected in 3 Powell on Mortgages, 968-977. 989-992.
163. Cholmley v. Oxford, 2 Atk. 267. Sir William Grant, 'in The Bishop of Winchester v. Paine, 11 Vesey, 199. Perine v. Dunn, 4 Johns. Ch. Rep. 140.
164. Jenner v. Tracy, cited in Cox's note to 3 P. Wins. 287. Belch v. Harvey, ibid. Anon. 3 Atk. 313. Aggas v. Pickerell, ibid. 225, Smith v. Clay, 3 Bra. 639, note. Lord Kenyon, in Bonny v. Ridgard, cited in 17 Vesey, 90. Hodle v. Healey, 1 Ves. & Beam. 536. Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129. Kane v. Bloodgood, 7 ibid. 90. Slee v. Manhattan Company, 1 Paige, 48. Lamar v. Jones, 3 Harr. 4 Mc Henry, 328. Sir Thomas Plumer, in Chalmer v. Bradley, 1 Jac. 4 Walk. 83. Lyttle v. Rowton, 1 Marshall, 519. Elmendorf v. Taylor, 10 Wheaton, 168. Lord Redesdale, in Cholmondeley v. Clinton, 2 Jac. 4s Walk. 191.
165. N. Y. Revised Statutes, vol. ii. 301. sec. 49, 50,, 51, 52. The period of limitation of a right of entry upon land varies very mate rially in the different states. It is 30 years in Mississippi; 21 years in Pennsylvania and Ohio; 20 years in Maine, New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, Alabama, Kentucky, Indiana, and Missouri; 15 years in Vermont and Connecticut; 10 years in Louisiana; 7 years in North Carolina, Tennessee, and Georgia; and 5 years in South Carolina. See the Appendix to Mr. Angell's learned, accurate, and valuable Treatise on the Limitation of Actions at Law and Suits in Equity. But after entry by the mortgagee, upon default or hy writ of entry, 'the limitation of the right of redemption in the New England States, is not regulated by the general limitation to a right of entry, hut is, as we have already seen, very much reduced.
166. Corbett v. Barker, 1 Anst. 138.
167. 1 Sim. 4 Stu. 471.
168. Blake v. Foster, 20 Ball & Beam. 575.
169. N. Y. Revised Statutes, vol. ii. 301. sec. 52.
170. According to the principle of the decision in Wells v. Prince, 9 Mass. Rep. 508. though a remainder-man should have acquired a right of entry in the lifetime of a devisee for life, yet he was not bound to avail himself of it, and might enter after his second right accrued by the death of the tenant for life.
171. Hillary v. Waller, 12 Vesey, 239. Cooke v. Soltan, 2 Sim. s, Stu. 154. Moore v. Cable, 1 Johns. Ch. Rep. 385. Giles v. Baremore, b Johns. Ch. Rep. 545. Jackson v. Wood, 12 Johns. Rep. 244, Ross v. Norvell, 1 Wash. 14.
172. Whiting v. White, Cooper's Eq. Rep. 1. Reeks v. Postlethwaite, ibid. 161. Barron v. Martin, ibid. 189. Hughes v. Edwards, 9 Wheaton, 489. The English rule as to the allowance of parol proof to destroy the effect of the mortgagee's possession for twenty years, was proposed lately in England to be abolished by the proposition of the real property commissioners, that the mortgagee's right, founded on twenty years' possession should not be taken away by any unwritten promise. statement, or acknowledgment.
173. Anon. 6 Madd. Ch. Rep. 15.
174. It is requisite in New York, to a valid execution of the power, that it be previously registered, or the mortgage containing it recorded, and that there be no pending suit at law, nor any judgment for the debt on which an execution has not been returned unsatisfied, and that notice sufficiently descriptive of the mortgage, and the debt, and the land, be published for twenty-four weeks successively, once a week, in a newspaper printed in the county where the lands, or a part of the lands, are situated, and the same also affixed up twenty-four weeks prior to the time of the sale, on the outward door of the nearest court-house of the county. Every such sale must be at public auction, and distinct farms, tracts, or lots, sold separately. The statute further provides, that the mortgagee, and his representatives, may purchase, and every such sale is declared to be equivalent to a foreclosure and sale in equity, so far as to bar the equity of redemption of the mortgagor, and of all persons claiming under him by title suhsequent to the mortgage; but it is not to affect a mortgagee, or judgment creditor, whose title or lien accrued prior to the sale. The statute contains some further directions necessary to he attended to, concerning the contents and disposition of the affidavit of the sale. N. Y Revised Statutes, vol. ii. 545. tit. 15.
175. Doolittle v. Lewis, 7 Johns. Ch. Rep. 50. it was formerly held, that though the mortgagee omitted to record the power, yet that the sale would be binding upon the mortgagor, and bar his equity of redemption. (Wilson v. Troup, 2 Cowen's Rep. 229. 242.) But the new revised statute would seem to be too precise in its injunctions to admit of such a latitudinary construction. It declares, that to entitle the party to give notice, and to make the foreclosure, it shall be requisite, that the power has been duly registered. and that every sale pursuant to a power as aforesaid, and conducted as therein prescribed, shall be a bar, etc.
176. Van Bergen v. Demarest, 4 Johns. Ch. Rep. 37. Nichols v. Wilson, ibid. 115.
177. Booth v. Rich, 1 Vern. 295. Mills v. Dennis, 3 Johns. Ch. Rep. 367.
178. Dove v. Dove, Dickens, 617, 10 fro, Ch. Cas, 375. 1 Cox's Cases, 101. S. C. Kershaw v. Thompson, 4 Johns. Ch. Rep. 60.9. Ludlow v. Lansing, 1 Hopkins, 231. Garretson v. Cole, 1 Hqrr. 4 Johns. 370. This power is confirmed by the N.Y. Revised Statutes, vol. ii. 191. sec. 152.
179. White v. Wilson, 14 Vesey, 151. Cunningham v. Williams, Amt. Rep. 344. Williamson v. Dale, 3 Johns. Ch. Rep. 290. Lan-sing v. McPherson, ibid. 424. Bland, Chancellor, in Anderson v. Foulke, 2 Harr. 6; Gill. 355, 356. In that case the Chancellor observed, that biddings were never opened in Maryland, or the sale suspended, merely to let in another and a higher bid. But if either before or after the ratification of the sale, there be any injurious mistake, misrepresentation, or fraud, the biddings will be opened, and the property again sent into the market. Gordon v. Sims, 2.M Cord's Ch. Rep. 15F 165.; and see the note of the learned reporter in the latter case, page 159, in which the English and American practice on this point is clearly stated, and the inferences therefrom justly drawn.
180. Preston, on Conveyancing, vol. ii. 200, 201.
181. Lord Hardwicke, in Harrison v. Owen, 1 Atk. 520. 1 Sch. cc Lef. 176,177. Judge Trowbridge's Essay on Mortgages, 8 Mass. Rep. 557. 561, 3. appendix.
182. 5 Mason's Rep. 521.
183. Lord Hardwicke, in Richards v. gyms, 3 Eq. Cas. Abr. 617. Barnard's Ch. Rep. 90. S. C. Lord Mansfield, in Martin v. Mowlin, 2 Burr, 978, 979. Johnson v. Hart, 3 Johns. Cas. 322. 1 Johns. Rep. 580. S. C. Jackson v. Willard, 4 Ibid. 41. Renyan v.. Mersereau, 11 ibid. 534. Jackson v. Davis, 18 ibid. 7. Jackson v. Brown, 19 ibid. 325. Wilson v. Troup, 2 Cowen's Rep. 195. Jackson v. Blodget, 5 ibid. 202. Wentz v. Dehaven, 1 Serg. & Rawle, 312. Kinsey, Ch. J., in Den v. Spinning, 1 Halsted, 471. Morgan v. Davis, 2 Harr. 4 McHenry, 17. Paxon v. Paul, 3 ibid. 399. Story J., in Hatch v. White, 2 Gall. Rep. 155.
184. Judge Trowbridge's reading on the Law of Mortgage, 8 Mass. Rep. 554. appendix. Warden v. Adams, 15 ibid. 233. Parsons v. Welles, 17 ibid. 419. Vose v. Handy, a Greenleaf, i22. Den v. Dimon, 5 Halsted, 156. Phelps v. Sage, 2 Day's Rep. 151. Faulkner v. Brockenborough, 4 Rand. 225. Breckenridge v. Brook, 2,Marsh. Rep. 337. But in Gray v. Jenks, 3 Mason's Rep. 520., a satin= fled mortgage, under the law of the state of Maine, was so fir deemed an extinguished title, as that no action would lie upon it by the mortgagee. The irresistible good sense and equity of such a conclusion, were felt and forcibly expressed by the learned judge who decided that case. The opinions of Judge Trowbridge are cited with the greatest respect in Massachusetts, and he is considered, and I presume very justly, as the oracle of the old real property law. He criticises, very ably, the opinion of Lord Mansfield, and some of the observations attributed to his lordship in Martin v. Mowlin were no doubt very loosely made. Judge Trowbridge insists, that Lord Mansfield confounds the distinction between mortgages of land for a term only, and a mortgage in fee. The former, he says, is but a chattel interest, and the latter an estate of inheritance, descendible as such, and the money due thereon is equitable assets. The Supreme Court of Massachusetts, in Parsons v. Welles, adhere to these views of the subject. But I would observe, with great submission and respect, that the doctrines of Judge Trowbridge, on mortgages, are far in arrear of the improvements of the age, in this branch of the science, and it will not do to take our doctrines of mortgages from Littleton and Coke. The language of the courts of law is now essentially the same as that in equity; and it is said again and again, to be an affront to common sense, to hold that the mortgagor, even of a freehold interest, is not the real owner. To show that many of the positions of Judge Trowbridge are not law at this day, it is sufficient to state, that lie maintains that the equity of redemption is not liable to be taken in execution;-that the mortgage money on redemption goes to the heir, and not to the executor of the mortgagee;-that a third mortgagee, without notice, may buy in the first mortgage, and secure himself against the second;-that the mortgagee in fee has an interest which a creditor may take on execution. The cases of Morgan v. Davis, Paxton v. Paul, Jackson v. Davis, and Jackson v. Blodget, may be selected, as cases in which it has been adjudged in courts of law, that on discharge of the mortgage, after a default, the fee reverts to, and vests in the mortgagor, without any conveyance; and I am persuaded, that most of the courts of law in this country would not now tolerate a claim of title under a mortgage, admitted or shown to have been fully and fairly satisfied by payment of the debt. In New Hampshire, there is a statute provision, which restores the lead to the mortgagor, by simple payment, or tender, after the condition is broken. Sweet v. Horn, 1 Adams, 332.