v. Perry. WINDHAM, ders' R. 343, n. 3. Clerk v. Withers, 2 Lord Raymond, February, 1842. 1075. The same rule of liability obtains in regard to the body, when once in custody upon execution. 12 Mod. 10. Bridges O'Neil v. Marson, 5 Burrow, 2813. 2 Saund. R. 244, a, note. But when the body is arrested on mesne process the sheriff may return a rescue. Cases cited above, and note to 2 Saund. R. 345. The reason assigned in the books is, that, in the case of arrest and custody, on final process, the officer usually has more time for preparation, and may, if he will, have the aid of the posse of the county; but in the case of mesne process, he must arrest when the debtor is pointed out to him, and may be often required to do it suddenly, and cannot always be supposed to have the posse at his command, at a moment's warning. To my mind, the attempt at making a distinction in the cases shows more reason for dispensing altogether with any such rigorous requirement, in either case, than it does for so wide a distinction between the two cases; but such is the law, and so are the reasons upon which its sages have seen fit to erect distinctions. The only question now is whether we shall adopt the analogy of this distinction in regard to property. The court are disposed to do it for two reasons. 1. If we hold the sheriff and other officers liable, in the case of property attached on mesne process, only for ordinary care and diligence, such as other bailees for pay are required to exercise, we place the liability upon a reasonable basis, whereas the rigorous accountability imposed upon certain classes of bailees, on account of some supposed facility or temptation, which they have been said to possess, for collusive rescues or robberies, is not founded upon any just warrant, either of sound judgment or constant experience. I refer to the cases of common carriers, and sheriffs, in regard to property taken on final process. 2. We think there is far more reason for the distinction which we here make, in regard to the liability of sheriffs for the keeping of goods on mesne and final process, in analogy to their different liability for keeping the body when arrested on those different processes, than there is for the distinction made in this latter case. For when property is taken on final process, it is to be kept but a short time, at longest, so that it may be closely watched, and kept with this severe Bridges v. Perry. diligence, for a few days, without materially interfering with WINDHAM, the other duties of the sheriff. But in the attachment of February, 1842. property on mesne process, in mere matters of collection, there will ordinarily be a delay of from six to eighteen months, and in matters of controversy this delay will be extended to many years; and to require the sheriffs to keep all property, by them attached on mesne process, at all hazards, except inevitable accident, or public force, would, of course, justify an expense in proportion to the degree of responsibility required, and would thus, in many cases, defeat the object of the attachment, by consuming the property in needless expense. I know that the rule of the English law in regard to property taken by distress, (which bears the closest analogy, of any thing found there, to our attachment on mesne process,) is, that it is to be sustained by the debtor, and, unless he will do it, it is said the officer may suffer it to perish, without incurring any liability. But such a rule could not be made tolerable here. Hence the sheriff is held responsible for the safe keeping of the property to the extent of other bailees. If he return the attachment, he is, prima facie, liable to produce the property upon the execution, but, as we think, may excuse himself by showing that it is not in hist power, and that he has been guilty of no fault. And even this degree of responsibility sometimes operates very severely. In the case of Sewall v. Mattoon, 9 Mass. R. 530, the attachment was made 16th December, 1806, of two oxen and two cows, and the execution issued on the 18th of February, 1811, more than four years subsequently, and when the expense of keeping would have more than twice exhausted the property; but as it did not appear that any such expense had been incurred, or that the officer had taken the cattle into custody, and if he had the debtor might have sustained them, as was his duty, the officer was made liable for the value of the property when attached and interest. And the case of Tyler v. Ulmer is somewhat similar. We think, then, there is very good reason why the officer attaching property on mesne process should only be liable to the same extent as other bailees for hire. Judgment reversed and new trial granted. Where a mortgagee gave public notice of the sale of the mortgaged premises at auction and engaged to give a title of warranty and immediate possession, and the mortgagor consented to such sale and aided and assisted in circulating notice thereof and received the amount of the purchase money, and the purchaser went into possession and made large improvements; it was held that the mortgagor could not afterwards redeem the premises, nor compel the purchaser to account for the rents and profits. A purchase of a right of redemption, under an agreement to pay a certain sum if the purchaser succeeds in obtaining a decree, permitting him to redeem the premises, or nothing if he fails in obtaining such decree, is illegal and void in a case where the person in possession has been in possession for a long time under a deed of warranty, intended to convey the fee of the land. THIS was an appeal from a decree of the court of chancery, dismissing the orator's bill. The bill was brought to obtain a decree allowing the orator to redeem certain mortgaged premises, and for an account of the rents and profits. From the bill, answers, and testimony, it appeared that Rufus Elmore was formerly the owner of the premises, and, on the 25th day of May, 1822, conveyed them to Arad Hunt, by a deed of mortgage; that, on the 24th day of March, 1826, Hunt conveyed the premises to one Pomeroy, by deed of warranty, and that the present defendants held the premises by deeds of warranty from Pomeroy and his grantees, executed long before the year 1839. In August, 1839, Elmore deeded the premises to the orator. All the deeds were duly recorded soon after their execution. It further appeared that Pomeroy purchased the premises at auction; that, previous to the auction sale, notice thereof was given by an advertisement inserted in the newspaper, printed at Brattleboro', in which it was stated that a title of warranty and immediate possession of the premises would be given; that Elmore was active in circulating the advertisements, giving notice of the terms of the sale, and assisted at the sale; that, previous to the sale, he declared that he could not, and 1842. Wright v. Whithead et al. did not expect to redeem the premises, and that he had WINDHAM, authorized Hunt to sell them either at public auction or February, private sale; that the auction was well attended and the premises were sold for nearly or quite their full value at the time of the sale; that Elmore immediately gave up the possession to Pomeroy; that the whole purchase money had been applied to Elmore's benefit, in extinguishing his debt, and he had declared himself fully satisfied; that the purchasers had made large and valuable improvements by building and repairing buildings, and that Elmore himself had done a job for the purchasers in building a barn or shed on the premises. The defendants and their grantors had been in possession of the premises more than thirteen years when this bill was filed. It further appeared that the consideration of Elmore's deed to the orator was the orator's note to Elmore for one hundred and fifty dollars, which was to be paid if the orator succeeded in obtaining a decree, permitting him to redeem the premises; but if he failed of obtaining such decree, then the note was to be void. W. C. Bradley, for orator. The orator has, within the period prescribed by law, brought the present bill, praying to be let in to redeem. Wells v. Morse, 11 Vt. R. 14. The defendants, in their answser, raise two preliminary questions as to the orator's deed. 1st. That he purchased the equity of redemption and gave his note therefor with a condition that if the title to redeem should fail, the note should be void. This if proved, shows nothing improper. It is neither maintenance nor champerty, nor is it unfair, for the orator might be really desirous of purchasing the land, and, besides helping the mortgagor, the parties might take measures to prevent suits, in case of unintentional failure. Even a prowling assignee, purchasing for an inconsiderable sum after the equity had been for many years abandoned, was let in to redeem. 3 Atk. 314, Anon. Powell on Mortgages, 347. 4 Kent's Com. 156, 159, 1st ed. 2. The defendants insist that the possession was adverse. But a mortgage is not within the statutes of 1807. Converse v. Searls, 10 Vt. R. 578. Besides, having purchased under the mortgage, they could not, by any deeds between them, February, 1842. WINDHAM, hinder his title, which was once a mortgage, being still a mortgage, Catlin v. Chittenden, Bray. 163; 4 Kent, 152; nor as his assignees could they hold adversely to the mortgagor except for their pledge. Wright v. Whithead et al. The defendants then take the ground that the equity of redemption was discharged by Elmore before he conveyed to the orator and this is attempted to be proved, 1st by his acts, 2d, by his acknowledgments. None of Elmore's acts impeach the equity of redemption. The mortgagee, in his own way and manner, sold his right to the premises. The presence, or even encouragement, of the mortgagor was no waiver of his rights, or any assurance that he was to join in the warranty mentioned in the advertisement; and it is evident, from the fact that the purchaser took his deed from Hunt alone, (who is now dead,) that he considered the warranty of that wealthy person one good inducement for him to omit all further care and attention to the perfecting of his title, and it was the interest of Elmore to give up the possession of the premises, and he might very fairly wish some of his particular acquaintances to purchase, thinking that they would be more likely to indulge him as to time of redemption. Moreover, it is to be recollected that, treating the sale as an assignment, it is quite proper to obtain the consent of the mortgagor, from the circumstance that it may effect the future accounting to him for the rents and profits, or the making of parties in any future bill to redeem. Powell on Mortgages, 203. And if it was not intended by Hunt as an assignment, then it is to be considered as an attempt, on the part of the mortgagee, to sell and transfer the pledged estate without foreclosure and without the proper concurrence of the mortgagor, which cannot be done in these cases. For if a freehold estate be held by way of mortgage for a debt, then it may be laid down as an invariable rule that the creditor must obtain a decree for a sale. There never was an instance in which the creditor, holding land in pledge, was allowed to sell it at his own will and pleasure. It would open a door for the most shameful imposition and abuse. Ch. Kent, in Hart v. Ten Eyck, 2 J. C. R. 101. 2. As to Elmore's acknowledgments. It is contended that his mere statements of his having put the premises into Hunt's hands to sell, though such an expression may well |