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MORTGAGES. WHAT CONSTITUTES A MORTGAGE. Continued.
4. Or whether the transaction was a sale and resale. The mere execution
of a deed absolute on its face, and a bond for the reconveyance of the
premises, upon certain conditions, does not of itself stamp the transaction
as a mortgage ; and when in such case, the proof shows that the parties
intended an absolute sale, with right to repurchase simply, such intention
must govern. Pitts et al. v. Cable et al. 103.
5. An absolute conveyance of property for money borrowed, with cove
nants back as a part of the same transaction, that upon the payment of
the debt so created such property shall be reconveyed, amounts merely to
a loan of money and a mortgage to secure its payment. Parmelee et al. v.
COVENANT TO RECONVEY BY MORTGAGEE.
6. Nature of title. And a covenant by the mortgagee to reconvey the
premises by "good and sufficient deed," will be construed as a covenant
to pass the same title conferred by the original conveyance. Ibid. 405.
OF A LIEN ON DIFFERENT FUNDS.
7. Of the rights of a mortgagee as to prior and subsequent incumbrances.
Where a person takes a mortgage on property a portion of which is in-
cumbered at the time and a portion is not, he thereby acquires the right
to satisfy his debt out of the portion not previously incumbered. And
this right passes to an assignee of the debt and security. And on a fore-
closure he could be compelled to resort for satisfaction, first, to lands upon
which the debtor did not reside. Dodds v. Snyder et al. 53.
8. A person taking a deed of trust on the lot of ground occupied as a
homestead by the debtor and also on a tract of land not so situated may
resort, for satisfaction of his debt, first, to the land ; nor is his right im-
paired by the debtor subsequently giving a mortgage on the land. The
law will not compel the first incumbrancer to advance a thousand dollars
to reach the surplus of the homestead before resorting to the land for
satisfaction. Ibid. 53.
9. The law does not require a person having a lien on two funds, one
of which is subject to a lien or incumbrance prior to his, and the other a
lien subsequent to his, to remove the incumbrance prior to his, to enable
the person holding the lien subsequent to his on the other fund, to obtain
satisfaction. If a creditor having a lien on two funds, one of which
was a homestead which is indivisible, and the other not subject to a prior
lien, the court could not compel him to advance one thousand dollars, and
sell the surplus of the homestead ; to do so would be to make a new con-
tract. Ibid. 53.
RELATION OF PARTIES TO EACH OTHER.
10. And as to strangers. A mortgage, as between the parties to it, is
considered simply as a security for a debt, but, as between the mortgagee
and a third person, the former is regarded as the owner of the freehold.
Moore v. Titman, 367.
RENTS AND PROFITS.
11. Rights of the parties respectively. A mortgagee, for condition broken
may enter upon the mortgaged premises and appropriate the rents and
profits arising therefrom to the benefit of his security. But a mortgagor
in possession is not required to account for the rents and profits to the
mortgagee, during his possession. Moore v. Titman, 367.
TAXES AND TAX TITLES.
12. Relative rights of the parties. A mortgagee cannot affect the rights
of the mortgagor by purchasing the mortgaged premises at a sale for
delinquent taxes; nor will he be permitted to set up as a bar to redemp-
tion the payment of taxes and possession acquired prior to a foreclosure;
nor will payment of taxes and seven years' possession by him, their rela-
tions not being adverse, create the bar of the statute. Ibid. 367.
13. A mortgagee in possession is bound to pay the taxes, and will be
allowed for all necessary expenses incurred to preserve the property and
protect the mortgagor's title, to be paid out of the rents and profits aris-
ing therefrom. Ibid. 367.
MORTGAGEE OF A LEASE.
14. Renewal of lease by mortgagee. Where a mortgagee of a lease
obtains a renewal, such renewal inures to the benefit of the mortgagor,
he paying the mortgagee's charges, whether such lease expired before
renewal or not. Ibid. 367.
MORTGAGEE AS A PURCHASER.
15. Under a power contained in the deed. A mortgages or a trustee is
prevented from purchasing at his sale of the premises under a power con-
tained in the deed, so as to bar the equity of redemption. Ibid. 368.
ACQUIRING OUTSTANDING TITLE BY MORTGAGEE.
16. Its effect on the rights of the parties. Although the relation of trus-
tee and cestui que trust may not be created by the mortgage as between
the parties, yet they are not on the same footing as to each other as a
stranger to the estate; and many acts, which a third person might per-
form, and thereby acquire an interest in the premises, would not, if
performed by a mortgagee, give him any new rights as against the mort-
gagor, but would inure to the benefit of the estate. Ibid. 368.
17. Where a mortgagee, by an agreement with the mortgagor, pur.
chased an outstanding prior incumbrance against the premises, after
foreclosure, and before the right of redemption by the mortgagor had
expired, and with the understanding, that such title, like his own, should
be subject to redemption, - held, that, under such agreement, the mort-
gagor had a clear right of redemption from the outstanding title, which
a court of equity would enforce. Ibid. 368.
18. Such agreement not within the statute of frauds. Such an agreement
is not within the statute of frauds, the relation of the parties being that
of mortgagor and mortgagee, and the purchase having been made by the
consent of the mortgagor, and for the benefit of the estate. Ibid. 368.
PURCHASER FROM MORTGAGOR.
19. Estoppel. M. and wife executed a mortgage upon their homestead
without the statutory waiver, and afterward conveyed it to P. subject to
the mortgage lien, and which lien formed a part of the purchase price.
Held, in a suit to foreclose by the mortgagee, that, P. having obtained the
premises by admitting the lien and assuming its payment, he was estopped
from setting up as a defense the omission of M. and wife to release their
homestead right in the mortgage. Pidgeon v. Trustees of Schools, 501.
OF A JUNIOR INCUMBRANCER.
20. Extent of his rights. A person taking a second mortgage on real
estate, only acquires a lien on the equity of redemption, and when such
mortgage is foreclosed and the property sold, the purchaser only obtains
that right. And it will be presumed that such a purchaser regulates his
bid with reference to the prior incumbrance, and only gave what it was
worth subject the prior lien. Dodds v. Snyder et al. 53.
FORECLOSURE BY SCIRE FACIAS.
21. When the note has been assigned. The assignment of a note secured
by mortgage, does not prevent a foreclosure by scire facias in the name of
the assignor for use of the assignee. The proceeding is on the mortgage,
the legal right to which is in the mortgagee, and he alone can institute
the proceeding. Camp et ux. v. Small, 37.
22. What defenses allowable. In a proceeding to foreclose by scire
facias, no defense can be interposed except the defense of payment, dis-
charge, release, satisfaction, or that the mortgage never was a valid lien
on the land. Pleas of usury and non est factum are not proper. Ibid. 37.
23. By a junior incumbrancer or his assignee. A junior incumbrancer,
not being a party to the bill to foreclose a prior mortgage, retains his
right to redeem from such prior mortgage, unaffected by a decree of fore-
closure thereof, and such right of redemption will pass to a purchaser
under such junior incumbrancer. Strang et al. v. Allen, 428.
24. Redemption from assignee of prior mortgage. The purchaser under
a junior incumbrancer having a right to redeem from a prior mortgage,
notwithstanding its foreclosure, has the right to redeem from the assignee
of such mortgage. Ibid. 428.
25. So, where a judgment creditor of a mortgagor redeems, as such,
from the sale under the foreclosure of a prior mortgage, a junior mortga-
gee, who holds an intervening lien, between the elder mortgage and the
judgment, may maintain a bill to redeem from such judgment creditor,
he holding the relation of assignee of the prior mortgage. Ibid. 428.
STATEMENT OF ACCOUNT,
26. On bill to redeem. The party having such right to redeem must pay
the assignee of the prior mortgage the amount paid by him to redeem
from the prior mortgage, with six per cent interest, and the decree should
be taken as the basis of the account, and not the original debt upon which
the decree was rendered. Ibid. 428.
MORTGAGES. STATEMENT OF ACCOUNT. Continued.
27. Rents and profits. A mortgagee in possession must account to the
mortgagor for the rents and profits, less the amount paid for taxes and
necessary repairs, and the same rights and liabilities in regard to the
rents and profits attach as between their respective assigns. Strang et al.
V. Allen, 428.
28. So, in stating the account between such party, having the right of
redemption, and the redeeming judgment creditor, as the assignee of the
prior mortgage, there should be deducted from the amount, to be charged
to the party redeeming, the rents and profits received by such assignee
of the prior mortgage while in possession of the mortgaged premises,
less the taxes and necessary repairs; because a mortgagee in possession is
always liable to account for the rents and profits received over and above
the necessary repairs and taxes. Ibid. 428.
29. Where junior incumbrancer was not a party to the foreclosure.
It is proper, in stating the account, to charge the party seeking to redeem
with the amount paid to redeem from the prior mortgage, notwithstanding
the junior incumbrancer, under whom the party seeking to redeem claims,
was not a party to the proceeding to foreclose the prior mortgage; the
decree of foreclosure of such prior mortgage must be taken as prima facie
correct, subject, however, to be attacked in that regard by the party seek-
ing to redeem, by proper allegations in his bill, which he must sustain on
the hearing. Ibid. 428.
LESSEE FROM A MORTGAGEE.
Termination of his term by the payment of the mortgage debt. See LAND-
LORD AND TENANT, 11.
EJECTMENT BY A MORTGAGOR.
When the right of action accrues. See EJECTMENT, 1.
SALE UNDER DEED OF TRUST.
Whether the trustee must first enter upon the premises. Soo DEED OF
TENDER BY MORTGAGOR.
Whether necessary. See TENDER, 2.
PARTIES ON FORECLOSURE.
Wife of mortgagor should be a party. See PARTIES, 7.
MULTIFARIOUSNESS. See CHANCERY, 5, 6,
MUNICIPAL CORPORATIONS. See HIGHWAYS, 1, 2; NUISANCES, 1.
1. Idem sonans. Courts at the present day are not confined to the rigid
rules of idem sonans, but inquire whether the variance is material. Belton,
Admx., v. Fisher, 33.
2. So in an action in this State, in the name of Elizabeth Belton, as
administratrix, upon the record of a judgment recovered in another Stato,
NAMES. VARIANCE THEREIN. Continued.
the transcript showing the original suit was brought in the name of
Elizabeth Beton, administratrix, etc., the variance was not decmed mata
rial, it being likely it was a simple omission of a letter in copying.
Belton, Admx., v. Fisher, 33.
IDENTITY OF PERSONS.
3. When presumed. Where depositions were taken by William Rifen-
burg, under a commission addressed to William Roffenburg, and cross
interrogatories were duly propounded and answered, and no objection was
taken except to the variance in the spelling of the name, the court might
well presume that the commission was executed by the proper person.
Whitaker v. Wheeler, 440.
4. Where several debtors, who were partners, made an assignment for
the benefit of creditors, and the schedule of unpreferreà creditors con-
tained this item, “Jacob Baker, house account, $11.93,” and it appeared
that one of the persons executing the deed was of the same name, this
court will not presume that they are one and the same person, in the
absence of all proof of the character of the debt, or of who such per
son is. Blow et al. v. Gage et al. 208.
WHAT COURTS HAVE JURISDICTION.
1. Of the Marine Court of the city of New York. The act of congress
which declares that every court of record in any State, having common
law jurisdiction, and a seal and clerk, shall be considered as a District
Court, for purposes of naturalization, only has reference to a court of
record for general, and not special purposes. Mills et al. v. McCabe, 194.
2. So the “Marine Court of the city of New York," being a court of
record only to the extent that it was so declared by statute, not possess
ing other powers incident to such a court, is not such a court of record
as was contemplated by the act of congress, and has, therefore, no juris
diction for purposes of naturalization. Ibid. 194.
NEGLIGENCE IN RAILROADS.
1. Passenger leaving the train at an improper place. While a passenger
train stopped upon a side track, away from a station, a passenger started
to get off the train, and was warned by the conductor not to do so, and as
the passenger stepped down upon the steps the conductor took hold of
his shoulder, and again told him to not get off there, but the passenger
persisted in getting off, and the train just then starting to move, he was
thrown under the wheels and injured. Held, that there was no negli
gence on the part of the company, but was on the part of the passenger,
and he could not recover for the injury received. Ohio and Mississippi
Railroad Co. v. Schiebe, 460.
2. Nor would it have been negligence on the part of the company,
under such circumstances, if there had been a violent jerking of the train