on the equity and validity of claims, is very strong. A purchaser of an equitable interest, standing out in a trustee, and who neglects to inform the trustee of it, will be postponed to a subsequent purchaser of the same interest, who makes inquiries of the trustee, and *180 has no *knowledge of the prior assignment, and

gives due notice of his purchase. So, a purchaser of real estate cannot hold against a prior equitable title, if he have notice of the equity before the payment of the purchase money, or the execution of the deed.

Attorney General v. Backhouse, 17 Vesey, 293. Sugden on Vendors and Purchasers, ch. 17, p. 745, 746, 7th edit. Our registry acts are designed toprotect purchasers against latent equities; the doctrine in the English law of constructive notice of the title of the lessee, or party in the possession, is not favoured in the American courts. Scott v. Gallagher, 14 Serg. & Rawle, 333. M'Mechan v. Griffing, 3 Pick. 149. Hewes v. Wiswell, 8 Greenleaf, 94. Flagg v. Mann, 2 Sumner, 556, 557. Where the possessor of land has caused a registry of a particular title, the purchaser need not look beyond it. But apart from any registry, possession ought to be sufficient to put purchaser on inquiry, and Ch. J. Gibson, in Woods v. Farmere, 7 Watts, 382, with his usually strong and stringent logic, justifies the doctrine of implied notice in such cases.

■ Dearle v. Hall, 3 Russell, 1. Jewett v. Palmer, 7 Johns. Ch. Rep. 65. Frost v. Beekman, 1 ibid. 288. Gallion v. M‘Caslin, 1 Blackford's Ind. Rep91. Gouverneur v. Lynch, 2 Paige, 300. Grimestone v. Carter, 3 ibid. 421. Boone v. Chiles, 10 Peters' U. S. Rep. 177. Meux v. Maltby, 2 Swanst. Rep. 281. Allen v. Anthony, 1 Merivale, 282. Merritt v. Lambert, 1 Hoffman's Ch. Rep. 166. With respect to the liability of purchasers, for the right application of the purchase money, it was declared as a general rule, by the Supreme Court of the United States, in Potter v. Gardner, 12 Wheaton, 498, that the person who pays the purchase money to the person authorized to sell, was not bound to look to its application, whether the lands sold be charged in the hands of an heir or devisee with the payment of debts, or the lands be devised to a trustee for the payment of debts, unless the money be misapplied with his co-operation. The principle of this decision appears to be most consistent with the common sense and practice of mankind, and to be reasonable and just, and a contrary doctrine would lead to abuse and imposition upon purchasers. The law concerning notice, express and implied, is very amply discussed by Mr. Coventry, in his notes to Powell on Mortgages, vol. ii. c. 14, 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

IV. Of foreclosure.

(1.) Of strict foreclosure.

The equity of redemption which exists in the mortgagor, after default in payment, may be barred or foreclosed, if the mortgagor continues in default *181 after due notice to redeem. The ancient practice was, by bill in chancery, to procure a decree for a strict foreclosure of the right to redeem, by which means the lands became the absolute property of the mortgagee. This is the English practice to this day, though sometimes the mortgagee will pray for, and obtain, a decree for a sale of the mortgaged premises, under the direction of an officer of the court, and the proceeds of the sale will, in that case, be applied towards the discharge of encumbrances according to priority." The latter practice is evidently the most beneficial to the mortgagor, as well as the most reasonable and accurate disposition

Powell, is not only uncommon, but very extraordinary. There never were two editors who have been more searching, and complete, and gigantic in their labours. 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.

Conati imponere pelio ossam

atque ossæ frondosum involvere olympum.

I acknowledge my very great obligations to those editors for the assistance I have received from their valuable labours; 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, &c., 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.

Mondey. Mondey, 1 Ves. & Beame, 223.

of the pledge. It prevails in New-York, Maryland, Virginia, South Carolina, Tennessee, Kentucky, Indiana, and probably in several other states." But in the NewEngland states, the practice of a strict foreclosure would seem to prevail, and the creditor takes the estate to himself, instead of having it sold, and the proceeds applied. But a subsequent encumbrancer, by paying the original debt, becomes entitled to all the rights of the first mortgagee." In Vermont, the mortgagor is allowed by the decree a definitive time (which is sometimes one and two years) to redeem, and in default the equity of redemption is foreclosed. In Massachusets, Rhode Island, and Maine, the mortgagor has three years, after the mortgage is foreclosed, to redeem, and in Connecticut fifteen years, and in New-Hampshire one year to redeem, after entry and seisin by the mortgagee, upon breach of the condition, and without foreclosure.

* Johns. Ch. Rep. passim. New-York Revised Statutes, vol. ii. 191, sec. 151. In Lansing v. Goelet, 9 Cowen's Rep. 346, it was decided, that a decree of foreclosure and sale, and a decree of sale without any express decree of foreclosure, were equally a complete bar of the equity of redemption. 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 M'Cord's Ch. Rep. 221. Paunell v. Farmers Bank, 7 Harr. & Johns. 202. David v. Grahame, 2 Harr. & Gill, 94. Act of Indiana, 1830. In Ohio, the mortgagee is entitled to a decree of foreclosure, where twothirds of the value of the mortgaged lands do not exceed the amount of the debt, and he may insist on a sale. 5 Hammond's Rep. 554. In Tennessee, the mortgagor has two years under an act of 1820, to redeem after confirmation of the master's sale, under a decree of foreclosure. Henderson v. Low

ry, 5 Yerger's Rep. 248.

b Mix v. Hotchkiss, 14 Conn. Rep. 45.

e Smith v. Bailey, 1 Shaw's Vermont Rep. 163, N. S. Ibid. 267.

d Lockwood v. Lockwood, 1 Day's Rep. 295. Swift's Dig. vol. ii. 656. 683. Erskine v. Townsend, 2 Mass. Newall v. Wright, 3 Mass. Rep. 155. 1799, c. 77. Massachusetts Revised Baylies v. Bussen, 5 Greenleaf, 153. Gilman v. Heddin, 5 N. H. Rep. 31. also been allowed in North Carolina.

Rep. 493. 1 Pick. 356. Wilde, J., Statute of Massachusetts, 1st March, Statutes, 1835, part 3, tit. 3, c. 107. Sweet v. Horn, 1 N. H. Rep. 332. The practice of a strict foreclosure has Spiller v. Spiller, 1 Hayw. 482. In

The severity of the foreclosure without a sale is *mitigated, by the practice of enlarging the time *182 to redeem from six months to six months, or for shorter periods, according to the equity arising from circumstances.

(2.) Of selling on foreclosure.

In England, and with us, the practice of selling the land by the party himself, or by an authorized trustee, under a power inserted in the mortgage, has extensively prevailed. The course in Ireland, as well as here, is to decree a sale instead of a foreclosure; and if the sale produces more than the debt, the surplus goes to the mortgagor, and if less, the mortgagee has his remedy for the difference. This course was recommended by Lord Erskine, as more analogous to the relative situation of lender and borrower, and it was the English practice a century ago, in cases where the security was defective. If the mortgagee proceeds by bill for the technical fore

Connecticut, the taking possession of mortgaged premises by the mortgagee, under a decree of foreclosure, was held to be an extinguishment of the debt by the appropriation of the pledge in satisfaction of it. The Derby Bank v. Landon, 3 Conn. Rep. 62. But by statute in 1833, the foreclosure of a mortgage does not preclude the creditor from recovering, by action, so much of his debt as the mortgaged property shall be insufficient to satisfy, estimated in value at the expiration of the time limited for redemption, and such action, after foreclosure, shall not open it.

Edwards v. Cunliffe, 1 Madd. Rep. 287. Perine v. Dunn, 4 Johns. Ch. Rep. 190. In Missouri, a short and easy mode of foreclosing mortgages is provided, and to be commenced by petition to the circuit court, and by process of summons. Revised Statutes of Missouri, 1835, p. 409. And in New Hampshire the mortgagee, or the administrator, may foreclose a mortgage by peaceable entry, and a possession of one year without process. Gibson v. Bailey, 9 N. H. Rep. 168. This is under the statute of 1829, and after a possession of one year according to the terms of the act, without tender of payment or demand of an account on the part of the mortgagor, the mortgage is foreclosed. This statute remains good, notwithstanding chaneery powers respecting the redemption and foreclosure of mortgages, according to established principles of chancery, were conferred on their superior court by the act of July 4, 1834. Wendell v. N. H. Bank, 9 N. H. Rep. 404.

b

closure, the estate becomes his property, in the chaacter of a purchaser; and the general understanding formerly was, that by taking the pledge to himself, he took it in satisfaction of the debt. But, according to the case of Took v. Hartley, if the mortgagee sells the estate, after the foreclosure, fairly, and for the best price, he may proceed at law against the mortgagor, upon his bond, for the difference; though he cannot have recourse at law for deficiency, so long as he keeps the estate, because the value of it is not ascertained, and the mortgagee cannot say what proportion of the debt remains due. It has likewise been repeatedly held, that an action at law by the mortgagee, after foreclosure, for the balance of the debt due him, opens it, and lets in the

mortgagor to redeem. There has been some em*183 barrassment and conflict of opinion *manifested

in the cases, on the point whether the mortgagee had his remedy at law after a foreclosure, and without a sale of the estate. The better opinion is, that after a foreclosure, with or without a subsequent sale, the mortgagee may sue at law for the deficiency, to be ascertained in the one case by the proceeds of the sale, and in the other by an estimate and proof of the real value of the pledge at the time of the foreclosure. Whether

In Schnell v. Schroder, 1 Bailey's Eq. Rep. 334, it was considered that the purchase of the equity of redemption by the mortgagee, either directly from the mortgagor or on execution under a junior judgment, extinguished the mortgage debt.

b2 Bro. 125. Dickens, 785, S. C.

Dashwood v. Blythway, 1 Eq. Cas. Abr. 317, pl. 3. Mosely, 196, S. C. Perry v. Barker, 13 Vesey, 198.

Lord Thurlow's opinion, as represented by Sir Samuel Romilly, and by Lord Eldon, in Perry v. Barker, 8 Vesey, 527. Hatch o. White, 2 Gallis.

Globe Ins. Company .

Rep. 152. Amory v. Fairbanks, 3 Mass. Rep. 562. Lansing, 5 Cowen's Rep. 380. Omaly v. Swan, 3 Mason's Rep. 474. Lansing v. Goelet, 9 Cowen's Rep. 346. Lovell v. Leland, 3 Vermont Rep. 581. Cullum v. Einanuel, 1 Alab. Rep. N. S. 23. In Davis v. Battine, 2 Russ. & Mylne, 76, it was declared, that though the mortgagee takes the debtor on ca. sa., it does not extinguish his lien on the land.