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of the money lent, refts are annually made, in making up the account, and applied to fink the principal. , But as this is often attended with great hardships, refpecting mortgages, (especially when the fum is large, and the mortgagee is forced to enter upon the eftate, and then can only fatisfy his debts by parcels, and is bailiff to the mortgagor, fubject to account without falary,) the court will not on every finall excefs of intereft, apply it to the principal. On an affignment of a mortgage, the affignee will ftand in the place of the affignor, and mult account for all the rents and profits received by him for the affignor had no lien on the estate, only for the fum actually due, which is all that he transfers. The mortgagee will be allowed for expences in necellary repairs and uf ful improvements, and for defending the ef tate against any claim.

IO. Of Foreclosure.

The fame principle of justice, which grants relief to mortgagors, after the time of payment has elapfed, has enabled the mortgagees to compel them to perform their contracts by the repayment of the money borrowed with intereft, or be forever foreclofed of their right of redemption: for it is neceflary that the title to the land fhould be quieted and fettled.

The mortgagee, is affignec, his heirs, or in cafe the estate i infolvent, or wanted to pay debts, his executor or administrator, may petition that the mortgagor, or whoever is entitled to the equity of redemption, may be compelled to redeem, by paying the principal funt due, together with the intereft, or be forever foreclosed from all right of redemption. The courts of chancery on fuch application, will afcertain the fum due, and decree that the mortgagor fhall pay fuch fum within a certain time, which is longer or fhorter at the difcretion of the court, according to the relative value of the mortgage money, to the mortgage premifes, and in cafe of payment, the mortgagee will be decreed to reconvey under a certain penalty; but if the mortgagor fail to pay the money within the time limited, he is forever fecluded and debar red from all right of redemption, by which the mortgage is foreclofed

r 2 Atk 534

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clofed. But where the value of the eftate greatly exceeds the value of the mortgage money, our courts of equity have refufed to foreclofe, and have difmitted applications for that purpose.

Courts of equity will never decree a foreclofure, until the period limited for the payment of the money be paffed, and the ef tate in confequence thereof forfeited to the mortgagee: for it cannot shorten the time given by exprefs covenant, and agreement between the parties, as that would be to alter the nature of the contract, to the injury of the party affected thereby. On a bill for foreclofure, the title of the mortgagee cannot be investigated, but he will be left to purfue legal meafures, to establish it. A married woman having a right to redeem, may be abfolutely foreclosed, by a proceeding against her during coverture. ❝ On ap

plication to a court by the mortgagee, an infant will be be foreclofed: but then on his arrival to full age, a time will be allowed to fhew good caufe to the contrary. This is the English practice, and conformable to this is the rule, that the parol shall demur : that is, when a fuit is brought against an infant, refpecting his inheritance, where the decifion would be a perpetual bar, the court may order fuch fuit to remain over until he arrive to full age:

but in this ftate, it has been provided by ftatute, that when any minor fhall be interested in any mortgaged eftate, or other real ef tate, which ought in equity to be conveyed to any other perfon, and fuch conveyance is decreed and ordered by the court having cognizance, the guardian of fuch minor is authorifed and empow ered to make and execute fuch conveyance in behalf of the minor, which fhall be effectual: and the court have power to enjoin the guardian to make the fame under a fuitable penalty and in cafe the minor has no guardian, the court may appoint one, who is impowered to defend him in the fuit, and execute the decree of the court.

When there are fundry parties interested in a mortgage, all ought to be called before the court, on an application to redeem or foreclofe; if they are not, none will be affected by the decree, but those who were parties to the fuit,

f2 Vent 365. 1 Vern. 232. #3 Wil. Rep. 352. * Statutes 48.

The

u 2 Vent. 351.

The mortgagor, or the perfon who reprefents him, and has the equity of redemption, may petition the mortgagee, that upon paying the principal fum with intereft, within fuch reasonable time as the court fhall fix, the mortgagee fhall be compelled to reconvey under fuitable penalty and that on failure of paying the money by the time limited, the mortgagor fall be forever foreclofed of his right to redeem. When there are fundry incumbrances, the latter incumbrancer fhould make all prior incumbrancers parties to the fult.

When a perfon takes a mortgage as a collateral fecurity for abond or note, he may to enforce the payment of his debt, pursue all his remedies at once: he may bring an action on the bond or note, he may bring diffifin for the land, and may petition to foreclofe the right to redeem, at the fame time, and one fuit is no bar to the other. Satisfaction for the debt is the object, and it is the duty of the debtor to make it, and on his failure, all the modes which he has given to enforce it, may be legally pursued: but whenever fatisfaction is obtained on one, it is a bar to all the others. If the creditor collects his bond or note, he cannot purfue his other remedies, but may be compelled to reconvey. If he foreclofes the right of redemption, by which he takes it out of the nature of a pledge, and appropriates it in payment, it will difcharge the bond or note: and if he attempts to purfue one remedy after he has obtained fatisfaction, on another, the mortgagor may be relieved by audita querela, or bill in equity.

Notwithstanding a decree of foreclosure, has been pafled, yet a court of equity may open the foreclofure, and extend the time of redumption, upon juft and equitable reafons: as where the mortg-gor was prevented from redeeming by fickness, or fome accident, without any negligence on his part: but applications to open foreclosures, mait be made in a fhort time for where the foreslofare has been for feveral years acquiefced in, and improvments made on the land, courts will not give farther time to redeem.

:

Kab. 254 Doug. 401.

CHAP.

CHAPTER FIFTH.

OF THE DIFFERENT VIEW OF CONTRACTS IN LAW
AND EQUITY.

CONTRACTS are the principal object of equitable jurisdiction,

and deserve a minute illuftration.

The general principles refpecting the execution and conftruction of contracts in law and equity, are the fame : y but equity adverts' to the fubftantial object of all contracts independent of the forms which they affume, and gives effect to the intent of ti e parties, by confidering their acts as evidence of fuch a contrad or agreement as will produce what is ftipulated. Therefore any kind of written, contract, if it exprefs the intent of the parties to flipulate with a view to fome particular thing, collateral to the contract itfch, will in equity amount to an agreement refpecting that thing, altho in form it affume a different character. z Thus where the condition of a bond was, in confideration of fo much money in hand paid, to convey and affure certain lands, it was held that fuch bonds were always confidered in equity as articles of agreement or contracts to convey lands, or do fome act, and that a fpecific performance of fuch contract, ought to be decreed.

• And the conftruction will be uniformly the fame in equity, altho the inftrument has become void by fome matter, ex polt facto. As where a fingle woman feized of land, and defigning to marry, agreed with her intended husband, that she upon the marriage would convey her lands to him and his heirs and for that purpose, the previous to the marriage, gave a bond in two thoufand pounds penalty, to the intended husband, conditioned, that in cafe the marriage took effect, fhe would convey her lands to him and his heirs; the marriage was bad, the hufband enjoyed the lands during his life; and on his death, his heirs brought a bill in chancery againft the heir of the wife to compel him to convey the lands of the wife to the heir of the hufband. It was objected that the bond became void by the intermarriage. But it was determined that the impropriety of the fecurity, or the inaccuracy in wording it, is not ma

L11
Pow. Con 313. z 2 Vez. 373.

a 2 P. Wil. 243.

terial

terial for it is fufficient that the bond is a written evidence of the agreement of the parties, that the husband in confideration of the marriage, fhould have the land as her portion.

But the most effential and important difference in the confideration of contracts in law and equity is, that while the former only awards damages for a violation, the latter furnishes a more compleat remedy, by enforcing a specific performance. For as the end of all contracts, is the actual accompliment of the thing ftipulated, the measure of the damages by no means answered the object propofed, and was an imperfect remedy. Upon this ground courts of equity interfered, and dealt with the corrupt confcience of the party, when he refufed to perform what he had ftipulated, and to make the reinedy adequate to the mischief, equity directed that to be done, which a man in honefty and confcience ought to have done of himself; that is, that the estate itself be fettled, or it decreed a delivery of the thing itself, or a performance of what was ftipulated according to the contract. It is therefore a general rule, that a court of equity will decree any contract that ought in confcience fpecifically to be carried into execution.

CHAPTER SIXTH,

OF THE POWER OF COURTS OF EQUITY, RESPECTING CONTRACTS RELATING TO THINGS REAL.

LANDS

ANDS being of a fixed and permanent nature, we find that contracts concerning them, have claimed much more of the attention of courts of equity, than contracts of a perfonal nature: and a much more important object can be anfwered by the enforcing of the fpecific performance of real, than personal contracts. To inveftigate this fubject fully, I shall confider,

On what Grounds, Courts will decree a fpecific performance of Contracts refpecting Lands.

2. When they will fet them afide, as unreafonable and fraudu lent.

3. When they will refufe to interpofe refpecting fuch Contracts.

b 2 Pow. Con. 3.

Gilb, Hil. Chan. 236, 237.

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