courts of equity, and was so highly cherished and protected, that it became a maxim, *that "once a mort- *159 gage always a mortgage." The object of the rule is to prevent oppression; and contracts made with the mortgagor, to lessen, embarrass or restrain the right of redemption, are regarded with jealousy, and generally set aside as dangerous agreements, founded in unconscientious advantages assumed over the necessities of the mortgagor. The doctrine was established by Lord Nottingham, as early as 1681, in Newcomb v. Bonham;a for, in that case, the mortgagor had covenanted, that if the lands were not redeemed in his lifetime, they should never be redeemed; but the chancellor held, that the estate was redeemable by the heir, notwithstanding the agreement; and though the decree in that case was subsequently reversed, it was upon special circumstances, not affecting the principle. The same general doctrine was pursued in Howard v. Harris, and it pervades all the subsequent and modern cases on the subject, both in England and in this country.c The equity doctrine is, that the mortgage is a mere security for the debt, and only a chattel interest, and that until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be would not admit of this equity of redemption. By the growth of equity, the heart of the common law was eaten out. He complained that an equity of redemption was transferable from one to another, though at common law a feoffmeut or fine would have extinguished it; and he declared he would not favour the equity of redemption beyond existing precedents. 1 Vern. 7. 232, and 2 Vent. 364. b 1 Vern. 190. • In Seaton v. Slade, 7 Vesey, 273, Lord Eldon observed, that the doctrine of the court gave countenance to the strong declaration of Lord Thurlow, that no agreement of the parties would alter the right of redemption. And as to the recognition of the doctrine with us, see Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. Clark v. Henry 2 Cowen's Rep. 324. Wilcox v. Morris, 1 Murphy, 117. Perkins v. Drye, 3 Dana's Ken. Rep. 176-178. In Newcomb v. Bonham, 1 Vern. 7, Lord Nottingham held, that the mortgagee might compel the mortgagor, at any time, to redeem, or be foreclosed, even though there was a special agreement in the mortgage that the mortgagor was to have his whole lifetime to redeem ; but his successor, on a re-hearing, (1 Vern. 232,) reversed his decision, and held, that the party had his whole lifetime, according to his contract; and this last decree was affirmed in parliament. *160 the real and beneficial estate, tantamount to the fee at law; and it is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law.a The courts of law have, also, by a gradual and almost insensible progress, adopted these equitable views of the subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction. Except as against the mortgagee, the mortgagor, while in possession, and before foreclosure, is regarded as the real owner, and a freeholder, with the civil and political rights belonging to that character; whereas the mortgagee, notwithstanding the form of the conveyance, has only a chattel interest, and his mortgage is a mere security for a debt. (1) This is the conclusion to be drawn from a view of the English and American authorities. The equity of redemption is not liable, under the English law, to sale on execution as real estate. to be equitable assets, and is marshalled according to equity principles. But, in this country, the rule has very extensively prevailed, that an equity of redemption was vendible It is held Casborne v. Scarf, 1 Atk. 603. 2 Jac. & Walk. 190. n. S. C. b The King v. St. Michaels, Doug. Rep. 630. The King v. Edington, 1 East's Rep. 288. Jackson v. Willard, 4 Johns. Rep. 41. Runyan v. Mersereau, 11 ibid. 534. Huntington v. Smith, 4 Conn. Rep. 235. Willington v. Gale, 7 Mass. Rep. 138. M'Call v. Lenox, 9 Serg. & Rawle, 302. Ford v. Philpot, 5 Harr. & Johns. 312. Wilson v. Troup, 2 Cowen's Rep. 195. Eaton v. Whiting, 3 Pick. Rep. 484. Blaney v. Bearce, 2 Greenleaf, 132. The growth and consolidation of the American doctrine, that until foreclosure the mortgagor remains seised of the freehold, and that the mortgagee has, in effect, but a chattel interest, and that it goes to the executor, as personal assets, and though, technically speaking, the fee descends to the heir, yet he is but a trustee for the personal representatives, and need not be a party to a bill by the executor for a foreclosure, was fully shown and ably illustrated by the Chief Justice of Connecticut, in Clark v. Beach, 6 Conn. Rep. 142, and by the Chief Justice of Maine, in Wilkins v. French, 20 Maine Rep. 111; and by the Chancellor of New-Jersey, in Kinne v. Smith, Green, 14; and these general principles were not questioned by the courts. • Lester v. Dolland, 1 Ves. jun. 431. calf v. Scholey, 5 Bos. & Pull. 461. Scott v. Scholey, 8 East's Rep. 467. Met d Plunket v. Penson, 2 Atk. 290. 4 Ves. jun. 436. S. C. (1) In New-York, a mortgage is only a chose in action; and the only right the mortgagee has in the land itself, is to take possession thereof, with the assent of the mortgagor, after the debt has become due and payable, and to retain such possession until the debt is paid. Waring v. Smith, 2 Barb. Ch. R. 119. 135. as real property on an execution at law; and it is also *chargeable with the dower of the wife of the mort- *161 gagor. On the other hand, the estate of the mortgagee, before foreclosure, or at least before entry, is not the subject of execution, not even though there has been a default, and the condition of the mortgage forfeited. The English policy led to an early adoption of these just and reasonable views of the character of a mortgagor; and it was settled in the reign of Charles II., that the executor, and not the heir of the mortgagee in fee, was entitled to the mortgage money; for, as Lord Nottingham observed, the money first came from the personal estate, and the mortgagee's right to the land was only as a security for the money. By the statute of 7 and 8 William III., mortgagors in possession were allowed to vote for members of parliament. The mortgagor may exercise the rights of an owner while in possession, provided he does nothing to impair the secu Waters v. Stewart, 1 Caines' Cases in Error, 47. Hobart v. Frisbie, 5 Conn. Rep. 592. Ingersoll v. Sawyer, 2 Pick. Rep. 276. Ford v. Philpot, 5 Harr. & Johns. 312. Carpenter v. First Parish in Sutton, 7 Pick. Rep. 49. Collins & Hannay v. Gibson, 5 Vermont Rep. 243. M'Whorter v. Huling, 3 Dana's Ken. Rep. 349. Fitch v. Pindead, 4 Scammon, 70. 83. In Connecticut, the interest of a cestui que trust in real estate is subject to the lien of attachment and the levy of execution. Davenport v. Lacon, 17 Conn. Rep. 278. Hunter v. Hunter, 1 Walker's Miss. Rep. 194. Garro v. Thompson, 7 Watts, 416. Phelps v. Butler, 2 Ohio Rep. 222. Bank of Canton v. Commercial Bank, 10 Ohio Rep. 71. Bagley v. Bailey, 16 Maine Rep. 151. Revised Laws of Missouri, 1835, p. 256. 1 Revised Statutes of North Carolina, 1837, p. 266. But in Maryland, and in the Maryland part of the District of Columbia, the wife of the mortgagor is not entitled to dower, nor can the mortgagor maintain trespass against the mortgagee, nor is the equity of the redemption of the mortgagor liable to execution at law. The rules of the common law are retained. Van Ness v. Hyatt, 13 Peters, 294. So, also, in NewYork, under the Revised Statutes, vol. ii. 368, on a judgment at law for a debt secured by mortgage, the equity of redemption cannot be sold on execution under that judgment. The creditor in that case must resort to a court of equity. NewHampshire would appear, however, to form an exception to the general practice of selling an equity of redemption on execution at law. Woodbury, J., in 2 N. H. Rep. 16. But that power of selling an equity of redemption, has been since given by the statute of July 3d, 1822. 9 N. H. Rep. 405. Jackson v. Willard, 4 Johns. Rep. 41. 345. Eaton v. Whiting, 3 Pick. Rep. 484. 235. Rickert v. Madeira, 1 Rawle, 325. 188. Glass v. Ellison, 9 N. H. Rep. 69. Blanchard v. Colburn, 16 Mass. Rep. Thornborough v. Baker, 3 Swanst. Rep. 628. Tabor v. Tabor, ibid. 636. a rity; but a court of chancery will always, on the application of the mortgagee, and with that object in view, stay the commission of waste by the process of injunction. An action at law by the mortgagee, will not lie for the commission of waste, because he has only a contingent interest;b (1) *162 and yet actions of trespass, quare clausum fregit, *by the mortgagee, for the commission of waste, by destroying timber, or removing fixtures, have been sustained against the mortgagor in possession, in those states where they have no separate equity courts with the plenary powers of a court of chancery. The interference with the discretion of the mortgagor is not carried further, and, in ordinary cases, he is not bound to repair, and keep the estate in good order;d and there is no instance in which a court of equity has undertaken to correct permissive waste, or to compel the mortgagor to repair; though cases of negligence rapidly impairing the security, without any overt act whatever, would address themselves with peculiar force to the courts of equity in New-York, since the mortgagee is now deprived by statute of the power of taking the estate into his own management. As the law stands, it would seem, that the mortgagee is left to guard his pledge against such contingencies, by his own provident foresight and vigilance in making his contract, or to seek for aid in the enlarged discretion of a court of equity, which would interfere for his indemnity in special cases, in which justice manifestly required it. Lord Hardwicke, in Robinson v. Litton, 3 Atk. 209. Ibid. 723. Brady v Waldron, 2 Johns. Ch. Rep. 148. Cooper v. Davis, 15 Conn. Rep. 556. In Eng land, the mortgagee out of possession is not entitled as of course to an injunction to restrain the mortgagor from cutting timber. There must be a special case, as that the security may become insufficient, before the court will interfere. King v. Smith, 2 Hare Ch. Rep. 243. b Peterson v. Clark, 15 Johns. Rep. 205. • Smith v. Goodwin, 2 Greenleaf, 173. Stowell v. Pike, ibid. 387. d Campbell v. Macomb, 4 Johns. Ch. Rep. 534. (1) In Southworth v. Van Pelt, 3 Barb. S. C. R. 347, a mortgagee, after forfeiture, and a decree obtained for the sale of the mortgaged premises, was allowed to maintain an action (on the case in the nature of waste) for waste committed by the mortgagor. The mortgagor was insolvent, and the premises were esteemed an inadequate security. After a thorough examination, Mr. J. Mason was unable to find any precedent for the action. (3.) His equity of redemption. The right of redemption exists, not only in the mortgagor himself, but in his heirs, and personal representatives, and assignee, and in every other person who has an interest in, or a legal or equitable lien upon the lands; and, therefore, a tenant in dower, or jointress, a tenant by the courtesy, a remainderman and reversioner, a judgment creditor, and every other incumbrancer, (1) unless he be an incumbrancer pendente lite, may redeem; and the doubts as to the extent of the right to redeem beyond the mortgagor and his representatives, arise only in courts of limited, and not of general equi a ty jurisdiction. Lord Hardwicke felt himself *bound *163 to allow a prowling assignee, who had bought in the equity of redemption for an inconsiderable sum, to redeem.b But the redemption must be of the entire mortgage, and not by parcels. (2) He who redeems must pay the whole debt, and he will then stand in the place of the party whose interest in the estate he discharges. If the judgment creditor seeks to redeem against the mortgagee of the leasehold estate, he must, as it is but a chattel interest, have first sued out a fieri facias, in order to creat a lien on the estate. The power of enforcing the right of redemption is an equitable power residing in the courts of chancery; and if there be no Lord Ch. B. Comyns, in Jones v. Meredith, Comyns' Rep. 670. Bateman v. Batemau, Prec. in Ch. 197. Sharpe v. Scarborough, 4 Ves. 538. 1 Powell on Mortgages, 312. 369, in notis. Grant v. Duane, 9 Johns. Rep. 591. Hill v. Holliday, 2 Litt. 332. Smith v. Manning, 9 Mass. Rep. 422. Bird v. Gardner, 10 ibid. 364. Anon. 3 Atk. 313. A mortgagor may redeem, though the consideration of the note secured by the mortgage was illegal. Cowles v. Raguet, 14 Ohio Rep. 33. The Master of the Rolls, in Palk v. Clinton, 12 Ves. 59. Calkins v. Munsell, 2 Root's Rep. 333. d Shirley v. Watts, 3 Atk. 200. Brinckerhoff v. Brown, 4 Johns. Ch. Rep. 671. (1) After tendering to a senior mortgagor the amount due, and demanding an assignment of the senior mortgage, a junior mortgagee may, by a bill in equity, compel such assignment. Pardee v. Van Anken, 3 Barb. S. C. R. 534. An assignment of the senior mortgage, in some cases, may be more advantageous to the junior mortgagee than a satisfaction. In New York, a creditor by mortgage has a right to redeem the mortgaged premises sold on execution, if his mortgage was a lien on the premises. Laws, 1836, ch. 525. p. 793. People v. Beebe, 1 Barb. S. C. Rep. 379. (2) Smith v. Kelley, 27 Maine R. 227. |