narrowly watched, are valid, and to be taken strictly as independent dealings between strangers; and the time limited for the repurchase must be precisely observed, or the vendor's right to reclaim his property will be lost.a Property of every kind, real and personal, which is capable of sale, may become the subject of a mortgage; quod emptionem, venditionemque recipit, etiam pignorationem recipere potest. It will, consequently, include rights in reversion and remainder, possibilities coupled with an interest, rents and franchises; but a mere expectancy as heir is a naked possibility, and not an interest capable of being made the subject of contract.b If a leasehold estate be mortgaged, it is usual to take the mortgage by way of underlease, reserving a few days of the original term; and this is done that the mortgagee may avoid being liable for the rents and covenants which *145 run with the land. *It is now settled, that the mortgagee of the whole term is liable on these covenants even before entry; and the case of Eaton v. Jaques, which had declared a contrary doctrine, after being repeatedly attacked, was at last entirely destroyed as an authority. A Barrell v. Sabine, 1 Vern. 268. Endsworth v. Griffith, 15 Viner, 468. pl. 8. Longuet v. Scawen, 1 Ves. 405. 1 Powell on Mortgages, 138, note T. If it be doubtful whether the parties intended a mortgage or a conditional sale, courts of equity incline to consider the transaction a mortgage as more benign in its operation. Poindexter v. M'Cannon, 1 Dev. Equity Cases, 373. The test of the distinction is this: if the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage; but if the debt be extinguished by the agreement of the parties, or the money advanced is not by way of loan, and the grantor has the privilege of refunding, if he pleases, by a given time, and thereby entitle himself to a reconveyance, it is a conditional sale. (1) Slee v. Manhattan Company, 1 Paige Ch. Rep. 56. Goodman v. Grierson, 2 Ball & B. 274. Marshall, Ch. J., in Conway v. Alexander, 7 Cranch, 287. Robinson v. Cropsey, 2 Edwards' V. C. Rep. 138. Flagg v. Mann, 14 Pick. 467. 2 Sumner, 534. Holmes v. Grant, 8 Paige Rep. 243. The court of equity never relieves the grantor who neglects to perform the condition on which the privilege of repurchasing depended. Davis v. Thomas, 1 Russ. & M. 506. Lord Eldon, in Carleton v. Leighton, 3 Merivale, 667. 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 (1) Brown v. Dewey, 2 Barb. S. C. Rep. 28. And see Baker v. Thrasher, 4 Denio's R. 493. mortgage is usually accompanied with a bond for the debt intended to be secured by it; but a covenant for the payment of the money, inserted in the mortgage, will be sufficient and equally effectual, with us; though in England, upon a very narrow construction of the statute of 3 W. & M., the remedy by an action of covenant does not lie against a devisee. The covenant must be an express one, for no action of covenant will lie on the proviso or condition in the mortgage; and the remedy of the mortgagee for non-payment of the money according to the proviso, would seem to be confined to the land, where the mortgage is without any express covenant or separate instrument. (1) The absence of any bond or covenant to pay the money, will not make the instrument less effectual as a mortgage.b *(5.) Of the power to sell. *146 It is usual to add to the mortgage a power of sale in case of default, which enables the mortgagee to obtain relief in a prompt and easy manner, without the expense, trouble, formality and delay of foreclosure by a bill in equity. 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 New-York Revised Statutes, vol. i. 739, lands held adversely may be mortgaged, though they cannot be the subject of grant. • Wilson v. Kimbley, 7 East's Rep. 128. Floyer v. Lavington, 1 P. Wms. 268. Briscoe v. King, Cro. Jac. 281. Yely. 206. Lord Hardwicke, in Lawley v. Hooper, 3 Atk. 278. Drummond v. Rich ards, 2 Munf. 337. Scott v. Fields, 7 Watts, 360. This doctrine has been made a statute provision in the New-York Revised Statutes, vol. i. 738, sec. 189, where it is declared, that no mortgage shall be construed as implying 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. (2) In Ancaster v. Mayes, 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 contract creditor, for there was still a debt; but the statute in New-York has disregarded the suggestion, and it is in opposition to the current of authority and the reason of the thing. (3) (1) The same rule applies to chattel mortgages. Culver v. Sissons, 3 Comst. R. 264. (2) Howe v. Fisher, 2 Barb. Ch. R. 559. (3) If a mortgagor convey the mortgaged premises to a purchaser, subject to the mortgage, and the personal liability of the mortgagor be released, the mortgaged property remains primarily liable. Tripp v. Vincent, 3 Barb. Ch. R. 613. See, also, Ferris v. Crawford, 2 Denio's R. 595. The vexatious delay which accrues upon foreclosure, arises, not only from the difficulty of making all proper persons parties, but chiefly from the power that chancery assumes to enlarge the time for redemption on a bill to foreclose. There are cases in which the time has been enlarged, and the sale postponed, again and again, from six months to six months, to the great annoyance of the mortgagee. These powers are found, in England, to be so convenient, that they are gaining ground very fast upon the mode of foreclosure by process in chancery. Lord Eldon considered it to be an extraordinary power, of a dangerous nature, and one which was unknown in his early practice. He was of opinion, that the power ought, for greater safety, to be placed in a third person, as trustee for both parties; and this appears to be still a prac tice, though it is considered as rather unnecessary and *147 cumbersome. The mortgagee *himself, under such a power, becomes a trustee for the surplus; and if due notice of the sale under the power be not given, the sale may be impeached by bill in chancery.d The title under the power from the mortgagee himself is sufficient in law, and the mortgagor will not be compelled to join in the conveyance.e A power given to the mortgagee to sell on default, may be given by any person otherwise competent to mortgage, of the age of twenty-one years, though formerly in New-York he was required to be of the age of twenty-five; and the power before any proceedings are had under it, must be duly regis In Edwards v. Cunliffe, 1 Madd. Ch. Rep. 160, the usual order on foreclosure was, that the mortgagor pay in six months, or stand foreclosed. This was afterwards enlarged to six months more, then to five, then to three, and to three again. b 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 power. 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 tenacem propositi virum ? Anon. 6 Madd. Ch. Rep. 15. Anon. 6 Madd. Ch. Rep. 15. Corder v. Morgan, 18 Ves. 394. After a sale under a power, the mortgagor's interest is divested, and he becomes a tenant at sufferance. Kinsley v. Ames, 2 Metcalf's Rep. 29. tered or recorded. These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person, who, by assignment or otherwise, becomes entitled to the money secured to be paid. But the power is not divisible, and an assignment by the mortgagee of a part of his interest in the mortgage debt and estate, will not carry with it a corresponding portion of the power. There may be difficult questions arising, as to the competency of persons to mortgage, who have only qualified interests in the estate, or are invested with beneficial or trust powers. But a power to mortgage includes in it a power to execute a mortgage, with a power to sell;d and the better opinion would seem to be, that a power to sell for the purpose of raising money, will imply a power to mortgage, which is a conditional sale, and within the object of the power. Such powers are construed liberally, in furtherance of the beneficial object. A power to *148 appoint land has been held to be well executed, by creating a charge upon it; and a power to charge will include a power to sell. The case falls within the reason and policy of the doctrine that a trust to raise money out of the profits of land, will include a power to sell or mortgage; and such a construction of the power has been long an established principle in the courts of equity. But if the execution of a power be prescribed by a particular method, it implies, that the mode proposed is to be followed, and it contains a nega New-York Revised Statutes, 3d edit. vol. ii. 545. sec. 1, 2. A notice of sale under the power must be published, at least once in each week, for twelve weeks successively, in a county newspaper, and by affixing the notice, for the same period, on the court-house door. Ibid. sec. 3. In Maine, the publication is to be three weeks, either in a county newspaper, or by notice on the party, and having it recorded. Act of Maine, 1838, ch. 333. Bergen v. Bennett, 1 Caines' Cases in Error, 1. Wilson v. Troup, 2 Cowen's Rep. 195. New-York Revised Statutes, vol. i. 735. sec. 108. Ibid. 737. sec. 133. • Wilson v. Troup, ub. sup. d Wilson v. Troup, 7 Johns. Ch. Rep. 25. • 1 Powell on Mortgages, 61. a. ed. Boston, 1828. 793. Roberts v. Dixall, 3 Eq. Cas. Abr. 668, pl. 19. Kenworthy v. Bate, 6 Ves. Lingon v. Foley, 2 Ch. Cas. 205. Sheldon v. Dormer, 2 Vern. 310. Trafford v. Ashton, 1 P. Wms. 415. Allan v. Backhouse, 2 Ves. & Beame, 65. tive upon every other mode. This rule more strongly applies to extended than to restricted executions of powers, for omne majus in se minus continet, and, generally, the execution of a power will be good, though it falls short of the full extent of the authority. In respect, however, to the execution. of a power to sell contained in a mortgage, the specific directions usually contained in the mortgage, and particularly when they are the subject of a statute provision, will preclude all departure from those directions, and consequently the power in the mortgage to sell would not include a power to lease. It is declared by statute, in New-York, that where any formalities are directed by the grantor of a power to be observed in the execution of the power, the observance of them is necessary; and the intentions of the grantor as to the mode, time and conditions of its execution, unless those conditions. are merely nominal, are to be observed.c (6.) Mortgage of reversionary terms. A very vexatious question has been agitated, and has distressed the English courts, from the early case *149 *of Graves v. Mattison,d down to the recent decision in Winter v. Bold,e as to the time at which money provided for children's portions may be raised by sale or mortgage of a reversionary term. The history of the question is worthy of a moment's attention, as a legal curiosity, and a sample of the perplexity and uncertainty which complicated settlements "rolled in tangles," and subtle disputa Joy v. Gilbert, 2 P. Wms. 13. Mills v. Banks, 3 ibid. 1. b Isherwood v. Oldknow, 3 Maule & Selw. 383. Sugden on Powers, 447. 449. 2d London edit. • New-York Revised Statutes, vol. i. 736, sec. 119, 120, 121. A power of sale contained in a mortgage is held valid in Missouri, and a sale by the mortgagee under the power conveys a valid title to the purchaser. Carson v. Blakey, 6 Missouri Rep. 273. Such a power is said to be invalid in Virginia. A power of sale in a mortgage is valid, and the proceedings regulated by statute in New-York. N. Y. R. S. vol. ii. 545, and by statute in 1842, ch. 277, § 8, every sale duly made under a power is equivalent to a foreclosure in equity, so far as to be a bar to the mortgagor and his representatives, and all persons claiming under him by any title subsequent to the mortgage, or having any lien by or under any judgment or decree subsequent to the mortgage. d Sir T. Jones, 201. e 1 Simon & Stuart, 507. |