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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 passed. (c) 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 mentioned, for he had an interest in the condition. (d) *If the representatives of the *141 mortgagee were mentioned in the feoffment, whether they were heirs, executors, or assignees, the payment could rightfully be made to either of them. (a)

(3.) The defeasance.

The condition upon which the land is conveyed is usually in serted 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. (b) The practice of placing the convey

(c) Litt. sec. 337.

(d) The Lord Cromwell's case, 2 Co. 79. Litt. sec. 334. Co. Litt. 208, b.

(a) Goodall's case, 5 Co. 95. Co. Litt. 210. This case of Goodall, 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.

(b) Dey v. Dunham, 2 Johns. Ch. 182. New York Revised Statutes, vol. i. 756. Harrison v. The Trustees of Phillips's Academy, 12 Mass. 456. Blaney v. Bearce, 2 Greenl. 182. Wright v. Bates, 13 Vermont, 341. The words of the New York statute are, "that if a deed appears, by a separate instrument, to have been intended as a mort gage, it shall be deemed a mortgage; and the grantee shall not derive any advantage

ance in fee and the condition or defeasance which is to *142 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. (a) 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. (c)1 A deed, absolute on the face of it,

from the recording of it, unless the defeasance be also recorded, and at the same time.1 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 judg ment creditor. Friedley v. Hamilton, 17 Serg. & Rawle, 70.2

(a) Lord Talbot, in Cotterell v. Purchase, Cases Temp. Talbot, 89. Baker v. Wind, 1 Vesey, 160. In New Hampshire this evil is guarded against by statute of July 3, 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 re-convey 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. Hamp. 150.

(b) Lund v. Lund, 1 N. Hamp. 39. Bickford v. Daniels, 2 Ibid. 71. Runlet v. Otis, Ibid. 167. Erskine v. Townsend, 2 Mass. 493. Kelleran v. Brown, 4 Ibid. 443. Stocking v. Fairchild, 5 Pick. 181. Newhall v. Burt, 7 Pick. 157.

(c) Taylor v. Weld, 5 Mass. 109. Cary v. Rawson, 8 Ibid. 159. Wharf v. Howell, 5 Binney, 499. Menude v. Delaire, 2 Desaus. 564. Reed v. Lansdale, Hardin, 6. James v. Morey, 2 Cowen, 246. Anon. 2 Hayw. 26. Dabney v. Green, 4 Hen. & Munf. 101. Thompson v. Davenport, 1 Wash. 125. Hughes v. Edwards, 9 Wheaton, 489. Hicks v. Hicks, 5 Gill & Johns. 75. Kelly v. Thompson, 7 Watts, 401. Holines v. Grant, 8 Paige, 243.

1 For a construction of this statute, see Stoddard v. Rotton, 5 Bosw. 378.

2 In Maine, a bond to re-convey land, given by the grantee as a defeasance. need not be recorded in order to give it validity between the parties. Jackson v. Ford, 40 Maine, 381:

1 An agreement that a deed absolute on its face should operate only as a mortgage, must

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 a mortgage, and that the defeasance has been

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omitted or destroyed by fraud, surprise, or mistake. (a)1 *143

(a) Maxwell v. Montacute, Prec. in Ch. 526. Lord Hardwicke, in Dixon v. Parker, 2 Vesey, 225. Marks v. Pell, 1 Johns. Ch. 594. Washburne v. Merrills, 1 Day, 139. Strong v. Stewart, 4 Johns. Ch. 167. James v. Johnson, 6 Ibid. 417. Clark v. Henry, 2 Cowen, 324. Murphy v. Trigg, 1 Monroe, 72. Slee v. Manhattan Company, 1 Paige, 48. Hunt v. Rousmaniere, 1 Peters U. S., 1. Story J., in Taylor v. Luther, 2 Sumner, 232, and in Flagg v. Mann, Ibid. 538. McIntyre v. Humphreys, 1 Hoff. Ch. 31. Brainerd v. Brainerd, 15 Conn. 575. Jenkins v. Eldredge, 3 Story C. C. 292, 293.

It was adjudged in the Court of Errors in New York, in Webb v. Rice, 6 Hill, 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 Sandf. Ch. 57, and it was considered that the absence of the personal liability of the grantor to repay the money was not a conclusive test.

be executed at the same time as the deed, otherwise, unless supported by some new consideration, it is a nudum pactum, and no right can arise under it. Bryan v. Cowart, 21 Ala. 92. Cotton v. Blocker, 6 Florida, 1. If a conveyance of real estate be made as security, whatever be the form, equity will hold it a mortgage. And the attempt to convert such a conveyance into an absolute conveyance is a fraud upon the law. Rogan v. Walker, 1 Wis. 527. Wyman v. Babcock, 2 Curtis C. C. 386. An absolute deed, with a bond to re-convey upon repayment of the purchase-money, and to permit the obligee in the mean time to occupy, paying rent equal to the interest on that sum, is a mortgage. Woodward v. Pickett, 8 Gray, 617.

1 Blackemore v. Byrnside, 2 English, 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 How. U. S. 139, and in Hannay v. Thompson, 14 Texas, 142. Contra, Watson v. Dickson, 12 Smedes & Marsh. 608. Hovey v. Holcomb, 11 Ill. 660. A bill of sale absolute on its face will be treated as a mortgage if intended as a security for money loaned. Ing v. Brown, 3 Md. Ch. Dec. 521. Scott v. Henry, 8 Eng. (13 Ark.) 112. Smith v. Pearson, 24 Ala. 358. See, also, Locke v. Palmer, 26 Ala. 312, where the matter is discussed at length. But the intention must be established by proof, not merely of declarations, but of facts dehors the deed, inconsistent with the idea of an absolute purchase. Glisson v. Hill, 2 Jones, Eq. (N. C.) 256. West v. Hendrix, 28 Ala. 226. In New York, the doctrine seems to be entirely settled, that an absolute deed of land may in equity be shown to be a mortgage. Hodges v. The Tennessee Marine and Fire Ins. Co., 8 N. Y. 416, and cases cited. But it cannot be shown, by parol, that such a deed was intended to be in trust for the benefit of the grantor. Sturtevant v. Sturtevant, 20 N. Y. 39. These two cases suggest the distinction between a trust and a mortgage. In Douglass v. Culverwell, 3 Giff. 251, it was recently held, by the English Chancery that where an absolute deed was

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; (c) though an agreement to give the mortgagee the right of preemption, in case of a sale, has been assumed to be valid. (d) 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 transac

tion. (e) He may become the purchaser at the sale of the *144 mortgaged premises by the master under a decree; (a)

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

(b) Jacques v. Weeks, 7 Watts, 261. Wright v. Bates, 13 Vermont, 341, S. P. (c) Bowen v. Edwards, 1 Rep. in Ch. 221. Willett v. Winnell, 1 Vern. 488. But if the agreement be subsequent and independent, that the grantee will re-convey upon repayment of the purchase-money, it does not convert the first deed into a mortgage. Kelly v. Thompson, 7 Watts, 401.

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

(e) Wrixon v. Cotter, 1 Ridgway, 295. Austin v. Bradley, 2 Day, 466. Lord Redesdale, in Hickes v. Cooke, 4 Dow, 16.

(a) Ex parte Marsh, 1 Madd. Ch. 148.

given for an inadequate consideration when the grantor was in pecuniary difficulty, his object being to obtain a loan, which was known to the grantee, and there being some other special circumstances, should be regarded as a mortgage.

requisite to make his title perfect; but the affidavit of the sale, when recorded, is sufficient evidence of the foreclosure. (b) 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. (c)

(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.1 Such conditional sales or defeasible purchases, though 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. (d) 3

(b) New York Revised Statutes, vol. ii. 546, secs. 7, 14.

(c) Munroe v. Allaire, cited in 1 Caines, 19. Davoue v. Fanning, 2 Johns. Ch. 252. Downes v. Grazebrook, 3 Meriv. 200. Slee v. Manhattan Company, 1 Paige, 48.

(d) Barrell v. Sabine, 1 Vern. 268. Endsworth v. Griffith, 15 Viner, 468, pl. 8. Longuet v. Scawen, 1 Vesey, 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. Eq. 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.2 Slee v. Manhattan Company, 1 Paige, 48. Goodman v. Grierson, 2 Ball. & Beat. 274. Marshall Ch. J., in Conway v. Alexander, 7 Cranch. 237. Robinson v. Cropsey.

1 As to what is a conditional sale and not a mortgage, see Beeman v. Lawton, 37 Maine 643; Brewster v. Baker, 20 Barb. (N. Y.) 364; Locke v. Palmer, 26 Ala. 312; Murphy v. Barefield, 27 Id. 634; Lee v. Kilburn, 3 Gray, 594; Hoopes v. Bailey, 28 Miss. (6 Cush.) 328: West v. Hendrix, 28 Ala. 226. Where it is doubtful whether a transaction was intended as a mortgage or a conditional sale, if there be gross inadequacy of price, the courts will consider it as a mortgage. Davis v. Stonestreet, 4 Ind. 101. For distinction between pledge, mortgage. and conditional sale, see Lucketts v. Townsend, 3 Texas, 119.

2 Brown v. Dewey, 2 Barb. (N. Y.) 28. And see Baker v. Thrasher, 4 Denio, 498. A deed upon condition is not a mortgage, unless it be a security for a debt or demand in the nature of a debt. Courts of Equity may, however, relieve against a forfeiture under such conditions, as in cases of other penalties. Bethlehem v. Annis, 40 N. Hamp. 34.

3 A vendee, limited to a given time to make a conditional sale absolute, need not wait till the expiration of that time before his election. Reese v. Beck, 24 Ala. 651. Hoopes r. Bailey 29 Miss. (6 Cush.) 328.

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