debtor's right in the pledge remains unextinguished, his interest is liable to be sold on execution; and the purchaser, like any other purchaser or assignee of the interest of the pawnor, succeeds to all his rights, and becomes entitled to redeem.a (1)

*The law of pledges shows an accurate and refined *140 sense of justice; and the wisdom of the provisions by which the interests of the debtor and creditor are equally guarded, is to be traced to the Roman law, and shines with almost equal advantage, and with the most attractive simplicity, in the pages of Glanville.

It forms a striking contrast to the common law mortgage of the freehold, which was a feoffment upon condition, or the creation of a base or determinable fee, with a right of reverter attached to it. The legal estate vested immediately in the feoffee, and a mere right of re-entry, upon performance of the condition, by payment of the debt strictly at the day, remained with the mortgagor and his heirs, and which right of entry was neither alienable nor devisable. If the mortgagor was in default, the condition was forfeited, and the estate became absolute in the mortgagee, without the right or the hope of redemption. So rigorous a doctrine, and productive of such forbidding, and, as it eventually proved, of such intolerable injustice, naturally led to exact and scrupulous regulations concerning the time, mode and manner of performing the condition, and they became all important to the mortgagor. The tender of the debt was required to be at the time and place prescribed; and if there was no place mentioned in the contract, the mortgagor was bound to seek the mortgagee, and a tender upon the land was not sufficient. If

Varnon, 1 Bailey's S. C. Rep. 527. Perry v. Graig, 3 Missouri Rep. 516. See supra, vol. ii. 582.

Kemp v. Westbrook, 1 Ves. 278. New-York Revised Statutes, vol. ii. 366. sec. 20. See supra, vol. ii. 577–585, on the doctrine of pledging.

b Litt. sec. 332.

c Co. Litt. 210. b.

(1) In Massachusetts, a stringent law has been passed to prevent frauds on the mortgagee of chattels. If the mortgagor sell without the written consent of the mortgagee, or without informing the purchaser, the act is a misdemeanor, punishable by fine and imprisonnent. Laws, 1850,

ch. 284.

there was no time of payment mentioned, the mortgagor had his whole lifetime to pay, unless he was quickened by a demand; but if he died before the payment, the heir could not tender and save the forfeiture, because the time was past.a If, however, the money was declared to be payable by the mortgagor, or his heirs, then the tender might be made by them at any time indefinitely after the mortgagor's death, unless the performance was hastened by request; and if a time for payment was fixed, and the mortgagor died in the mean

time, his heir might redeem, though he was not men*141 tioned, for he had an interest in the condition. *If

the representatives of the mortgagee were mentioned in the feoffment, whether they were heirs, executors or assignees, the payment could rightfully be made to either of them.c

(3.) The defeasance.

The condition, upon which the land is conveyed, is usually inserted in the deed of conveyance, but the defeasance may be contained in a separate instrument; and if the deed be absolute in the first instance, and the defeasance be executed subsequently, it will relate back to the date of the principal deed, and connect itself with it, so as to render it a security in the nature of a mortgage. The essence of the defeasance is, that it defeats the principal deed, and makes it void if the condition be performed. In order, however, to render the deed a security against subsequent purchasers and mortgagees, it is necessary that the deed and defeasance should be recorded together. An omission to have the defeasance registered, would operate to make the estate, which was conditional between the parties, absolute against every person but the original parties and their heirs. The practice of placing

a Litt. sec. 337.

b The Lord Cromwell's Case, 2 Co. 79. Litt. sec. 334. Co. Litt. 208. b.

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.

Dey v. Dunham, 2 Johns. Ch. Rep. 172. New York Revised Statutes, vol. i.

the conveyance in fee and *the condition or defeasance *142 which is to qualify it, in separate instruments, is liable to accidents and abuse, and may be productive of injury to the mortgagor; and the court of chancery has frequently, and very properly, discouraged such transactions. This must more especially be productive of hazard to the rights of the mortgagor, in those states where the powers of a court of equity are very sparingly conferred, and where the character of an instrument of defeasance is to be determined upon the strict technical principles of the common law, and must take effect concurrently with the deed, as part of the one and the same transaction.b

In equity, the character of the conveyance is determined by the clear and certain intention of the parties; and any agreement in the deed, or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the repayment of money, will make it such, and give to the mortgagor the right of redemption. A deed,

756. Harrison v. The Trustees of Phillips' Academy, 12 Mass. Rep. 456. Blaney v. Bearce, 2 Greenleaf, 132. Wright v. Bates, 13 Vermont Rep. 341. The words of the New-York statute are, that if a deed appears, by a separate instrument, to have been intended as a mortgage, it shall be deemed a mortgage; and the grantee shall not derive any advantage from the recording of it, unless the defeasance be also recorded, and at the same time. In Pennsylvania, upon a similar point, it has been decided, that if the separate defeasance be not recorded, the absolute deed is to be considered as an unrecorded mortgage, and postponed, according to the rule in that state in such cases, to a subsequent judgment creditor. Friedley v. Hamilton, 17 Serg. & Rawle, 70.

* Lord Talbot, in Cotterell v. Purchase, Cases Temp. Talbot, 89. Baker v. Wind, 1 Ves. 160. In New-Hampshire this evil is guarded against by statute of July 3d, 1829, which declared that no estate in fee should be defeated or incumbered by any agreement or writing of defeasance, unless the same be inserted in the conveyance as part thereof. But though such an absolute deed, accompanied with a bond to reconvey on payment of a loan, be void as against the creditors of the grantor, yet the agreement constitutes a secret trust, which might, perhaps, be enforced in equity as between the parties. Tifft v. Walker, 10 N. H. Rep. 150.

Lund v. Lund, 1 N. H. Rep. 39. Bickford v. Daniels, 2 ibid. 71. Runlet v. Otis, ibid. 167. Erskine v. Townsend, 2 Mass. Rep. 493. Kelleran v. Brown, 4 ibid. 443. Stocking v. Fairchild, 5 Pick. Rep. 181. Newhall v. Burt, 7 Pink. 157.

Wharf v.

Taylor v. Weld, 5 Mass. Rep. 109. Cary v. Rawson, 8 ibid. 159. Howell, 5 Binney, 499. Menude v. Delaire, 2 Desaus. 564. Reed v. Landale, Hardin, 6. James v. Morey, 2 Cowen's Rep. 246. Anon. 2 Hayw. 26. Dabney v. Green, 4 Hen. & Munf. 101. Thompson v. Davenport, 1 Wash. Rep. 125. VOL. IV. 10

absolute on the face of it, and though registered as a deed, will be valid and effectual as a mortgage, as between the parties, if it was intended by them to be merely a security for a debt, and this would be the case though the defeasance was by an agreement resting in parol; for parol evidence is admissible

in equity, to show that an absolute deed was intended as *143 a mortgage, and that the defeasance has been *omitted.

or destroyed by fraud, surprise or mistake.a (1) When it is once ascertained that the conveyance is to be considered and treated as a mortgage, then all the consequences appertaining in equity to a mortgage are strictly observed, and the right of redemption is regarded as an inseparable incident.b An agreement, at the time of the loan, to purchase for a given price, in case of default, is not permitted to interfere with the right of redemption; though an agreement to give the mort

Hughes v. Edwards, 9 Wheat. Rep. 489. Hicks v. Hicks, 5 Gill & Johns. 75. Kelly v. Thompson, 7 Watts, 401. Holmes v. Grant, 8 Paige Rep. 243. Maxwell v. Montacute, Prec. in Ch. 526. Lord Hardwicke, in Dickson v. Parker, 2 Ves. 225. Marks v. Pell, 1 Johns. Ch. Rep. 594. Washburne v. Merrills, 1 Day, 139. Strong v. Stewart, 4 Johns. Ch. Rep. 167. James v. Johnson, 6 ibid. 417. Clark v. Henry, 2 Cowen's Rep. 324. Murphy v. Tripp, 1 Monroe's Rep. 73. Slee v. Manhattan Company, 1 Paige, 48. Hunt v. Adm'rs of Rousmaniere, 1 Peters' U. S. Rep. 1. Story, J., in Taylor v. Luther, 2 Sumner, 232, and in Flagg v. Mann, ibid. 538. McIntyre v. Humphreys, 1 Hoffman's Ch. Rep. 31. Brainerd v. Brainerd, 15 Conn. Rep. 575. Jenkins v. Eldredge, 3 Story's Rep. 292, 293.

It was adjudged in the court of errors in New-York, in Webb v. Rice, 6 Hill Rep. 219, that parol evidence was not admissible in a court of law, to show that a deed absolute, on its face, was intended as a mortgage.

It is often a perplexed question, whether a conveyance was intended to be absolute or as a security merely: the cases were extensively reviewed by the Ass. V. Ch. of New-York, in Brown v. Dewey, 1 Sandford's Ch. Rep. 57, and it was considered that the absence of the personal liability of the grantor to repay the money was not a conclusive test.

b Jaques v. Weeks, 7 Watts, 261. Wright v. Bates, 13 Vermont Rep. 341. S. P.

• Bowen v. Edwards, 1 Rep. in Ch. 117. Willett v. Winnell, 1 Vern. 488. But if the agreement be subsequent and independent, that the grantee will reconvey upon repayment of the purchase money, it does not convert the first deed into a mortgage. Kelly v. Thompson, 7 Watts, 401.

(1) Blackmore v. Burnside, 2 English's R. 505. 1 Greenleaf's Cruise, tit. 15, (Mortgages,) ch. 1. sec. 20. The learned editor considers parol evidence admissible to show the actual transaction. It was admitted in Russell v. Southard, 12 Howard's U, S. R. 188. Contra, Watson v. Dickson, 12 Smedes & M. R. 608.

gagee the right of pre-emption, in case of a sale, has been assumed to be valid. But, at our public sales, which always take place when the equity of redemption is foreclosed, either by judicial decree, or under the operation of a power to sell, no such agreement could have application; and it may be questioned whether it does not come within the equity and policy of the general principle, which does not permit agreements at the time of the loan, for a purchase, in case of default, to be valid.

The mortgagee may contract subsequently to the mortgage, for the purchase or release of the equity of redemption upon fair terms; and yet no agreement for a beneficial interest out of the mortgaged premises, while the mortgage continues, is permitted to stand, if impeached in a reasonable time. The reason is, that the mortgagee, from his situation, wields a very influential motive, and he has great advantage over the mortgagor in such a transaction.b He may become the purchaser at the sale of the *mortgaged premises *144 by the master under a decree ; and, in New-York, he is permitted, by statute, to purchase at the sale under a power, though he be the person who sells, provided he acts fairly and in good faith; and in that case no deed is requisite to make his title perfect; but the affidavit of the sale, when recorded, is sufficient evidence of the foreclosure.d Without such a statute provision, the purchase would be subject to the scrutiny of a court of equity, and liable to be impeached, though the purchase is defeasible only by the cestui que trust, and not ipso facto void.

(4.) Of conditional sales and covenants to pay.

The case of sale, with an agreement for a repurchase within a given time, is totally distinct, and not applicable to mortgages. Such conditional sales or defeasible purchases, though

a

Orby v. Trigg, 3 Eq. Cas. Abr. 599. pl. 24. 9 Mod. Rep. 2. S. C.

b Wrixon v. Cotter, 1 Ridgway, 295. Austin v. Bradley, 2 Day, 466. Lord

Redesdale, in Hicks v. Cook, 4 Dow, 16.

• Ex parte Marsh, 1 Madd. Ch. Rep. 148.

d New-York Revised Statutes, vol. ii, 546, sec. 7. 14.

• Munroe v. Allaire, cited in 1 Caines' Cases in Error, 19. Davoue v. Fanning, 2 Johns. Ch. Rep. 252. Downes v. Grazebrook, 3 Merivale, 200. Slee v. Manhattan Company, 1 Paige, 48.