those for whom the portions were provided.1 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 parent's 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 mar riage 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. (a) The inclination of the Court of Chancery *150 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)

(a) Sir Joseph Jekyll, in Evelyn v. Evelyn, 2 P. Wms. 661. 14 Viner, 240, pl. 11, (b) 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 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, secs. 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 See Briggs v. Chamberlain, 23 Eng. L. & Eq. 87.

(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.1 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. (c) It was followed by the decision in Birch v. Ellames, (d) and the principle declared is, that the deposit

is evidence of an agreement to make a mortgage, which will 151 be carried into 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. (a) 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. (b) The decisions on this subject have, however, shown a determined disposition to keep within the letter of the precedents,

(c) 1 Bro. C. C. 269

(d) 2 Anst. 427.

(a) Ex parte Haigh, 11 Vesey, 403. Norris v. Wilkinson, 12 Ibid. 192. Ex parte Hooper, 19 Ibid. 477.

(b) Ex parte Whitbread, 19 Vesey, 209. Ex parte Langston, 17 Vesey, 230. Lord Ellenborough, in Doe v. Hawke, 2 East, 481. Ex parte Kensington, 2 Vesey & Bea. 79. Fector v. Philpott, 12 Price, 197. Rockwell v. Hobby, 2 Sandf. Ch. 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 Myl. & K. 417. Parker v. Housefield, Ibid. 419.

1 An agreement not under seal, made in consideration of a conveyance of land to support the grantor, and "pledging the use" of the land for that purpose, is an equitable mortgage. Chase v. Peck, 21 N. Y. 581; and see Jackson v. Dunlap, 1 Johns. Cas. 114 In re Howe and wife, 1 Paige, 125. Stoddard v. Hart, 23 N. Y. 556.

and not to give the doctrine further extension;1 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. (e) 2 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 circumstance 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. (d)

(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 purchase-money, *152 or so much as remains unpaid; and the principle is founded in natural equity, and seems to be inherent in the English equity jurisprudence. The Court of Chancery will appoint a receiver in behalf of the vendor, if the vendee has obtained the property and refuses to pay. (a) This equitable mortgage will bind the vendee and his heirs, and volunteers, and all purchasers from the ven

(c) Ex parte Coombe, 4 Madd. 249. Lucas v. Dorrien, 7 Taunt. 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.

(d) Berry v. Mutual Ins. Company, 2 Johns. Ch. 603.

(a) Payne v. Atterbury, Harr. Ch. (Mich.) 414.

1 A deposit of title deeds, as collateral for money advanced on a promissory note on demand, and a subsequent verbal agreement to execute a mortgage of the property comprised in such title deeds, was held insufficient to create a security by way of mortgage. James v. Rice, 23 Eng. L. & Eq. 567. 27 Id 342.

2 It is a good equitable mortgage when only one of their title deeds is deposited by bankrupts, this, however, being the principal conveyance of the property, the other deed being in the hands of their solicitors. Ex parte Chippendale, 1 Deac. 67. An actual deposit of the title deeds of the property to be mortgaged is not necessary to establish an equitable mortgage in a court of equity; an intention to deposit the deeds and show a charge upon the premises, is sufficient. Ex parte Edwards, 1 Deac. 611. Deposit of title deeds by a bond creditor is not of itself sufficient evidence of a deposit by way of equitable mortgage. Chapman v. Chapman, 3 Eng. L. & Eq. 70. See, also, Adams's Eq. 3d Am. ed. 123.

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. H. & Gor. 189.

dee, 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, or where the object of the sale was not money, but some collateral benefit. (b) In Mackreth v. Symmons, (c) 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; (d) and it has been extensively recognized and adopted in the United States. (e) It has been a question much discussed,

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

(c) 15 Vesey, 329.

(d) Dig. lib. 18, tit. 1, 1. 19.

(e) Cole v. Scott, 2 Wash. C. C. 141. Cox v. Fenwick, 3 Bibb, 183. Garson v. Green, 1 Johns. Ch. 308. Fish v. Howland, 1 Paige, 20. Warner v. Van Alstyne, 3 Ibid. 513. Bayley v. Greenleaf, 7 Wheaton, 46. Gilman v. Brown, 1 Mason, 191. Watson v. Wells, 5 Conn. 468. Jackman v. Hallock, 1 Hamm. (Ohio) 147. Tierman v. Beam, 2 Ibid. 465. Patterson v. Johnson, 7 Ibid. 226. Eskridge v. M‘Clure, 2 Yerger, 84. Sheratz v. Nicodemus, 7 Ibid. 9. Wynne v. Alston, 1 Dev. Eq. (N. C.) 163. Evans v. Goodlet, 1 Blackf. (Ind.) 246. Lagon v. Badollet, Ibid. 416. Van Doren v. Todd, 2 Green (N. J.), 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. 464. Church J., in 17 Conn. 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, 3 Ired. Eq. 182.2

2 It exists in Arkansas. English v. Russell, 1 Hemp. 35. In Kentucky, by statute, the vendor has no lien, unless it is expressly stated in the deed what part of the consideration remains unpaid. Chapman v. Stockwell, 18 B. Mon. (Ky.) 650. Burns v. Taylor, 23 Ala. 255. So when a note is given. Pinchain v. Collard, 13 Texas, 333. Salmon v. Hoffman, 2 Cal. 138. Herbert v. Scofield, 1 Stockt. (N. J.) 492. That this lien is assignable, see Fisher v. Johnson, 5 Ind. (Porter) 492; and for a numerous citation of the later cases and a discussion of this lien, see Adams's Equity, 3d Am. ed. 128 et seq., and Mackreth v. Symmons, 1 Lead. Cases in Eq. 241, 1st Am. ed See, also, Davidson v. Allen, 36 Miss. 419, and Niel v. Kinney, 11 Ohio State, 58.

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 lien. In several cases it is held, that taking a bond *153 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 ordinary evidence of the debt. (a)1 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. (b)3 Taking the deposit of stock is also a waiver of the lien; (c) and, notwithstanding the decision of the Master of the Rolls, in Grant v. Mills, (d) 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. (e) 4

(a) Winter v. Lord Anson, 3 Russ. 488. Lagon v. Badollet, 1 Blackf. (Ind.) 416. Van Doren v. Todd, 2 Green (N. J.), 397. Eskridge v. M'Clure, 2 Yerger, 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, 20.

(b) Taking a promissory note with an endorser is not a waiver of the lien. Magruder ". Peter, 11 Gill & Johns. 217. But the vendor's lien for the purchasemoney does not pass to the assignee of his note taken for the purchase-money. Bland Ch. 524. White v. Williams, 1 Paige, 506. Brigg v. Hill, 6 Howard (Miss.), 362.2

(c) Nairn v. Prowse, 6 Vesey, 759. Lagon v. Badollet, 1 Blackf. (Ind.) 416. (d) 2 Vesey & Bea. 306.

(e) Brown v. Gilman, 1 Mason, 191. 4 Wheaton, 255, S. C. Williams v. Roberts,

1 But where the vendor has elected to affirm the contract, sued on the note, and procured decree and sale of the land, he cannot again, under the same contract, subject it to sale. Amory v. Reilly, 9 Ind. 490.

2 Walker v. Williams, 30 Miss. (1 George) 165. Shall v. Biscoe, 18 Ark. 142. In this last case, the interesting query is raised, whether the vendor, if forced to pay the note as assignor, regains his lien?

8 But see Coster v. Bank of Georgia, 24 Ala. 37; Griggsby v. Hair, 25 Id. 327; Slack v. McLagan, 15 III. 242.

4 A special contract for the payment of purchase-money must be explicit to deprive a