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tion, and eternal doubts, will insensibly incumber and oppress a free and civilized system of jurisprudence. If nothing appears to gainsay it, the period at which they are to be raised is presumed to have been intended to be that which would be most beneficial to those for whom the portions were provided. If the term for providing portions ceases to be contingent, and becomes a vested remainder in trustees, to raise portions out of the rents and profits, after the death of the parents, and payable to the daughters coming of age, or marriage, a court of equity has allowed a portion to be raised by sale or mortgage in the lifetime of the parents, subject, nevertheless, to the life estate. The parents' death is anticipated, in order to make provision for the children. The result of the very protracted series of these discussions for one hundred and fifty years is, that if an estate be settled to the use of the father for life, remainder to the mother for life, remainder to the sons of the marriage in strict settlement, and, in default of such issue, with remainder to trustees to raise portions, and the mother dies without male issue, and leaves issue female, the term is vested in remainder in trustees, and they may sell or mortgage such a reversionary term, in the lifetime of the surviving parent, for the purpose of raising the portions, unless the contingencies on which the portions were to become vested had not happened, or there was a manifest intent that the term should not be sold or mortgaged in the lifetime of the parents, nor until it had become vested in the trustees in *possession. The inclination *150 of the court of chancery has been against raising portions out of reversionary terms, by sale or mortgage, in the lifetime of the parent, as leading to a sacrifice of the interest of the person in reversion or remainder; and modern settlements usually contain a prohibitory clause against it.b

Sir Joseph Jekyll, in Evelyn v. Evelyn, 2 P. Wms. 661. 14 Viner, 240. pl. 11.

See Coote's Treatise on the Law of Mortgages, 147–163, and 1 Powell on Mortgages, 74-100, Boston edit. 1828, where numerous cases on this question are collected; and the review of them becomes a matter of astonishment, when we consider the ceaseless litigation which has vexed the courts on such a point. Most of the great names which have adorned the English chancery, from the reign of Charles II., when the first adjudication was made, down to the present day, have

(7.) Of deposit of title deeds.

A mortgage may arise in equity, out of the transactions of the parties, without any deed or express contract for that special purpose. It is now well settled in the English law, that if the debtor deposits his title deeds with a creditor, it is evidence of a valid agreement for a mortgage, and amounts to an equitable mortgage, which is not within the operation of the statute of frauds. The earliest leading decision in support of the doctrine of equitable mortgages, by the deposit of the muniments of title, was that of Russell v. Russell, in 1783.a It was followed by the decision in Birch v. Ellames, and the principle declared is, that the deposit is evidence of an agree

ment to make a mortgage, which will be carried into *151 execution by a court *of equity, against the mortgagor,

and all who claim under him, with notice, either actual or constructive, of such deposits having been made. Lord Eldon and Sir William Grant considered the doctrine as pernicious, and they generally expressed a strong disapprobation of it, as breaking in upon the statute of frauds, and calling upon the court to decide, upon parol evidence, what is the meaning of the deposit. But the decision in Russell v. Russell has withstood all the subsequent assaults upon it, and the principle is now deemed established in the English law, that a mere deposit of title deeds upon an advance of money, without a word passing, gives an equitable lien. The decis

expressed an opinion, either for or against the expediency and solidity of the rule Such a contingent limitation to trustees, as the one in the instance cited, would be too remote, and void, under the New-York Revised Statutes, vol. i. 723, sec. 14-17; but the great point touching the power to sell or mortgage the remainder to raise portions, may arise in New-York, as well as elsewhere.

1 Bro. 269.

b 2 Anst. 427.

• Ex parte Haigh, 11 Ves. 403. Norris v. Wilkinson, 12 ibid. 192. Ex parte Hooper, 19 ibid. 477.

Ex parte Whitbread, 19 Ves. 209. Ex parte Langton, 17 Vesey, 230. Lord Ellenborough, in Doe v. Hawke, 2 East's Rep. 486. Ex parte Kensington, 2 Vesey & Beame, 79. Factor v. Philpot, 12 Price, 597. Rockwell v. Hobby, 2 Sandford's Ch. Rep. 9. In the case of an equitable mortgage given by the deposit of deeds, the mortgagee is entitled to enforce it by a bill and a decree for a sale of the estate; and the mortgagor is allowed six months to redeem the deposited deeds, and pay the debt, whether the decree be for a sale or for a strict foreclosure. Pain v. Smith, 2 Mylne & Keene, 417. Parker v. Housefield, ibid. 419.

ions on this subject have, however, shown a determined disposition to keep within the letter of the precedents, and not to give the doctrine further extension; and it is very clear, that a mere parol agreement to make a mortgage, or to deposit a deed for that purpose, will not give any title in equity. There must be an actual and bona fide deposit of all the title deeds with the mortgagee himself, in order to create the lien.a Nor will such an equitable mortgage be of any avail against a subsequent mortgage, duly registered, without notice of the deposit; and if there be no registry, it is the settled English doctrine, that the mere circumstances of leaving the title deeds with the mortgagor, is not, of itself, in a case free from fraud, sufficient to postpone the first mortgagee to a second, who takes the title deeds with his mortgage, and without notice of the first mortgage.b

(8.) Equitable lien of vendor.

The vendor of real estate has a lien, under certain circumstances, on the estate sold, for the purchase money. The vendee becomes a trustee to the vendor for the pur

chase *money, or so much as remains unpaid; and the *152 principle is founded in natural equity, and seems to be inherent in the English equity jurisprudence. (1) The court of chancery will appoint a receiver in behalf of the vendor, if the vendee has obtained the property and refuses to pay.c This equitable mortgage will bind the vendee and his heirs, and volunteers, and all purchasers from the vendee, with notice of the existence of the vendor's equity. Prima facie the lien exists without any special agreement for that purpose, and it remains with the purchaser to show, that from the circumstances of the case, it results that the lien was not intended to be reserved, as by the taking other real or personal security,

Ex parte Coombe, 4 Madd. Rep. 133. Lucas v. Dorrien, 7 Taunt. Rep. 279. Ex parte Coming, 9 Vesey, 115. Ex parte Bulteel, 2 Cox, 243. Norris v. Wilkinson, 12 Vesey, 192. Ex parte Pearse, 1 Buck. B. C. 525.

b Berry v. Mutual Ins. Company, 2 Johns. Ch. Rep. 603. Payne v. Atterbury, Harrington's Mich. Ch. Rep. 414.

(1) A vendor who has conveyed the legal estate to a vendee, has no lien on the title deeds for the unpaid purchase money. Goode v. Burton, 1 Wels. II. & Gor. R. 189.

or where the object of the sale was not money, but some collateral benefit. In Mackreth v. Symmons,b Lord Eldon discusses the subject at large, and reviews all the authorities; and he considers this doctrine of equitable liens to have been borrowed from the text of the civil law;e and it has been extensively recognised and adopted in the United States. It has been a question much discussed, as to the facts and circumstances which would amount to the taking of security

from the vendee, so as to destroy the existence of the *153 lien. In several cases it is held, that taking a bond from the vendee, for the purchase money, or the unpaid part of it, affected the vendor's equity, as being evidence that it was waived; but the weight of authority, and the better opinion is, that taking a note, bond or covenants, from the vendee, for the payment of the money, is not of itself an act of waiver of the lien, for such instruments are only the

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Chapman v. Tanner, 1 Vern. 267. Lord Hardwicke, in Walker v. Preswick, 1 Vesey, 622. Lord Eldon, in Austin v. Halsey, 6 ibid. 483. Sir William Grant, in Nairn v. Prowse, ibid. 759. Hughes v. Kearney, 2 Sch. & Lef. 132. Meigs v. Dimock, 6 Conn. Rep. 458. Stafford v. Van Rensselaer, 9 Cowen's Rep. 316. Marsh v. Turner, 4 Missouri Rep. 253. Deibler v. Barwick, 4 Blackf. Ind. Rep. 339. Marshall, Ch. J., in Bayley v. Greenleaf, 7 Wheaton, 46. Magruder v. Peter, 11 Gill & Johnson, 217. Carroll v. Van Rensselaer, Harrington's Mich. Ch. Rep. 226.

b 15 Vesey, 329.

Dig. lib. 18. tit. 1. 1. 19.

d Cole v. Scot, 2 Wash. Rep. 191. Cox v. Fenwick, 3 Bibb, 183. Garson v. Green, 1 Johns. Ch. Rep. 308. Fish v. Howland, 1 Paige, 20. Warner v. Van Alstyne, 3 ibid. 513. Bayley v. Greenleaf, 7 Wheat. Rep. 46. Gilman v. Brown, 1 Mason's Rep. 191. Watson v. Wells, 5 Conn. Rep. 468. Jackman v. Hallock, 1 Hammond's Ohio Rep. 318. Tierman v. Beam, 2 ibid. 383. Patterson v. Johnson, 7 ibid. 226. Eskridge v. M'Clure, 2 Yerger's Rep. 84. Sheratz v. Nicodemus, 7 ibid. 9. Wynne v. Alston, 1 Devereux's Equity Cases, N. C. 416. Evans v. Goodlet, 1 Blackford's Ind. Rep. 246. Lagow v. Badollet, ibid. 416. Van Doren v. Todd, 1 Green's N. J. Rep. 397. But this doctrine of an equitable lien for the purchase money has been judicially declared not to exist in Pennsylvania, after the vendor has conveyed the legal title, as against a subsequent judgment creditor. Kauffelt v. Bower, 7 Serg. & Rawle, 64. Semple v. Burd, ibid. 286. Megargel v. Saul, 3 Wharton, 19. It is said, also, not to have been adopted in all its extent in Connecticut. Daggett, J., 6 Conn. Rep. 464. Church, J., in 17 Conn. Rep. 583, and it does not exist in Massachusetts. Story, J., in Gilman v. Brown, supra; and has been exploded in North Carolina. Womble v. Battle, 4 Iredell's Eq. Cases, 182.

ordinary evidence of the debt.a Taking a note, bill or bond, with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the lien." Taking the deposit of stock is also a waiver of the lien ; and, notwithstanding the decision of the Master of the Rolls, in Grant v. Mills, holding, that a bill of exchange, drawn by the vendee, and accepted by him and his partner, did not waive the lien; the sounder doctrine, and the higher authority is, that taking the responsibility of a third person for the purchase money, is taking security, and extinguishes the lien. (1)

It has also been decided by the Supreme Court of the United States, after a full examination of the question, and upon grounds that will probably command general assent,

Winter v. Lord Anson, 3 Russell, 488. Lagow v. Badollet, 1 Blackf. Ind. Rep. 416. Van Doren v. Todd, 1 Green's N. J. Rep. 397. Eskridge v. M'Clure, 2 Yerger's Rep. 84. Ross v. Whitson, 6 ibid. 50. But it is held that the assignment of the note given for the purchase money, will not carry with it the vendor's lien. Brush v. Kinsley, 14 Ohio Rep. 30.

b Taking a promissory note with an endorser is not a waiver of the lien. Magruder v. Peter, 11 Gill & Johnson, 217. But the vendor's lien for the purchase money does not pass to the assignee of his note taken for the purchase money. Bland's Ch. Rep. 524. White v. Williams, 1 Paige, 506. Brigg v. Hill, 6 Howard Miss. Rep. 362.

Nairn v. Prowse, 6 Ves. 752. Lagow v. Badollet, 1 Blackf. Ind. Rep. 416. d2 Ves. & Beame, 306.

• Gilman v. Brown, 1 Mason's Rep. 191. 4 Wheat. Rep. 255. S. C. Williams v. Roberts, 5 Hammond's Ohio Rep. 35. Eskridge v. M'Clure, 2 Yerger's Rep. 84. Foster v. The Trustees of the Athenæum, 3 Alabama R. N. S. 302. In the Roman law, from whence the doctrine of the vendor's lien is supposed to be derived, the absolute property passed to the buyer, if the seller took another pledge, or other personal security; venditæ vero res et traditæ non aliter emptori acquiruntur, quam si is venditori pretium solverit, vel alio modo ei satisfecerit, veluti ex promissore aut pignore dato. Inst. 2. 1. 41. Hoc nomine fide jussor, hic intelligi videtur. Vinnius in Inst. h. t.

(1) A special contract for the payment of purchase money must be explicit to deprive a vendor of his lien. Frail v. Ellis, 17 Eng. L. & E. R. 457.

In Vermont, by act of legislature, (Laws of 1851, p. 42,) the vendors' lien is taken away, unless given by deed.

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