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and treated as a mortgage, then all the consequences appestaining in equity to a mortgage are strictly observed, and the right of redemption is regarded as an inseparable Ancident. An agreement, at the time of the loan, to pur. chase absolutely for a given price, in case of default, is not permitted to interfere with the right of redemption;a though an agreement to give the mortgagee the right of pre-emption in case of a sale has been assumed to be valid. 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. TV
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 transaction. He may become the purchaser at the sale of the mortgaged premises by the master under a decree,' 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 requisite to make his title perfect, but the affidavit
a Bowen v. Edwards, 1 Rep. in Ch. 117. Willett v. Winnell, 1 Vern. 488.
6 Orby v. Trigg, 3 Eq. Cas. Abr. 599. pl. 24. 9 Mod. 2. S. C.
c Wrixon v. Cotter, 1 Ridgway, 295. Austin v. Bradley, 2 Day, 466. Lord Redesdale, in Hicks v. Cooke, 4 Dow, 16.
d Ex parte Marsh, 1 Madd. Ch. Rep. 148. Vol. IV.
of the sale, when recorded, is sufficient evidence of the foreclosure." 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..
The chise of an absolute sale, with an agreement for a re-parchase within a given time, is totally distinct, and not applicable to mortgages. Such 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.
Property of every kind, real and personal, which is capable of sale, may become the subject of a mortgage -quod emptionem, venditionemque recipit, etiam pgnorationem recipere potest. It will, consequently, include rights in reversion and remainder, possibilities coupled with an interest, rents and franchises ; but a mere expectancy as heir is a naked possibility, and not an interest capable of being made the subject of contract.d If a leasehold estate be mortgaged, it is usual to take the mortgage by way of underlease, reserving a few days of the original term ; and this is done that the mortgagee may avoid being liable for the rents and covenants which run with the land. It is now settled, that the mortgagee of the whole term is liable on these covenants even before entry; and the case of Eaton v. Jaques, which had declared a contrary doctrine, after being repeatedly attacked, was at last entirely
a N. Y. Revised Statutes, vol. i. 546. sec. 7. and 14.
b Munroe v. Allaire, cited in 1 Caines' Cases in Error, 19. Davoue v. Fanning, 2 Johns. Ch. Rep. 252. Downes v. Grazebrook, 3 Merivale, 200. Slee y. Manhattan Company, 1 Paige, 48.
c Barrell y. 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.
d Lord Eldon, in Carleton v. Leighton, 3 Merivale, 667. e Doug. Rep. 455.
destroyed as an authority. A mortgage is usually accompanied with a bond for the debt intended to be secured by pit; but a covenant for the payment of the money, inserted in the mortgage, will be sufficient, and equally effectual with us ; though, in England, upon a very narrow construction of the statute of 3 W. g M., the remedy by an laction of covenant does not lie against a devisee. The covenant must be an express one, for no action of covenant will lie on the proviso or condition in the mortgage, and the remedy of the mortgagee for non-payment of the money according to the proviso, would seem to be confined to the land, where the mortgage is without any express covenant or separate instrument. The absence of any bond or covenant to pay the money, will not make the instrument less effectual as a mortgage.
"It is usual to add to the mortgage a power of sale in case of default, which enables the mortgagee to obtain relief in a prompt and easy manner, without the expense,
a Williams v. Bosanquet, 1 Brod. & Bing. 238. It is, however, said to be better for the mortgagee to take an assignment of the whole time, than an underlease by way of mortgage; for then the right of renewal of the lease will be in him. i Powell on Mort. 197. n. 1. By the N. Y. Revised Statutes, vol. i. 739. lands held adversely may be mortgaged, though they cannot be the subject of grant.
b Wilson v. Kimbley, 7 East, 128.
c Floyer v. Lavington, 1 P. Wms. 268. Briscoe v. King, Cro. Jac. 281. Yelv. 206. Lord Hardwicke, in Lawley v. Hooper, 3 Atk. 278. Drummond v. Richards, 2 Munf. 337. This doctrine has been made a statute provision in the N. Y. Revised Statules, vol. i. 738. sec. 139. where it is declared, that no mortgage shall be construed as implying a covenant for the payment of the money; and if there be ņo express covenant for such payment in the mortgage, and no bond or other separate instrument to secure payment, the mortgagee's remedy is confined to the land mortgaged. In Ancaster v. Mayes, 1 Bro. C. C. 464. Lord Thurlow, however, intimated very strongly, that though the mortgage was unaccompanied with either bond or covenant, yet that the mortgagee would have the rights of a simple contract creditor, for there was still a debt ; but the statute in New-York has disregarded the suggestion.
trouble, formality, and delay of foreclosure by a bill in equity. The vexatious delay which accrues upon foreclosure, arises, not only from the difficulty of making all proper persons parties, but chiefly from the power that chancer assumes to enlarge the time for redemption on a bill to foreclose. There are cases in which the time has been enlarged, and the sale postponed, again and again, from six months to six months, to the great annoyance of the mort. gagee. These powers are found in England to be so convenient, that they are gaining ground very fast upon the mode of foreclosure by process in chancery. Lord Eldon considered it to be an extraordinary power of a dangerous nature, and one which was unknown in his early practice. He was of opinion, that the power ought, for greater safety, to be placed in a third person as trustee for both parties, and this appears to be still a practice, though it is considered as rather unnecessary and cumbersome. The mortgagee himself, under such a power, becomes a trustee for the surplus, and if due notice of the sale under the power be not given, the sale may be impeached by bill in chancery. The title under the power from the mortgagee him
a In Edwards v. Cunliffe, 1 Madd. Ch. Rep. 160. the usual order on foreclosure was, that the mortgagor pay in six months, or stand foreclosed. This was afterwards enlarged to six months more, then to five, then to three, and to three again.
6 Roberts v. Bozon, February, 1825. The power to sell inserted in a mortgage, though unknown to Lord Eldon in his early practice, is of a more ancient date than even the life of Lord Eldon, for we find an instance of it in Croft v. Powell, Cumyn's Rep. 603. It was there insisted to be a valid power, and the court, without questioning its operation, decided the cause on the ground that the mortgagee had not conveyed an absolute estate under the power. Lord Eldon's aversion to innovation has grown with his growth, and breaks out on every occasion ; but who does not revere, even in his errors, the justum et tena. cem propositi virum?
c Anon. 6 Madd. Ch. Rep. 15. v Ibid.
self is sufficient in law, and the mortgagor will not be compelled to join in the conveyance.
A power given to the mortgagee to sell on default, may be giyen by any person otherwise competent to mortgage, of the age of twenty-one years, though formerlyin this state he was required to be of the age of twenty-five; and the power, before any proceedings are had under it, must be duly registered or recorded. These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person who, by assignment or otherwise, becomes entitled to the money secured to be paid. But the power is not divisible, and an assignment by the mortgagee of a part of his interest in the mortgage debt and estate will not carry with it a corresponding portion of the power. There may be difficult questions arising as to the competency of persons to mortgage who have only qualified interests in the estate, or are invested with beneficial or trust powers. But a power to mortgage includes in it a power to execute a mortgage, with a power to sell ;e and the better opinion would seem to be, that a power to sell for the purpose of raising money, will imply a power to mortgage, which is a conditional sale, and within the object of the power. Such powers are construed liberally in furtherance of the benefi. cial object. A power to appoint land has been held to be well executed by creating a charge upon it, and a power to charge will include a power to sell. The case falls within
a Corder y. Morgan, 18 Vesey, 394.
c Bergen v. Bennett, 1 Caines' Cases in Error, 1. Wilson v. Troup, 2 Cowen, 195. N. Y. Revised Statutes, vol. i. 735. sec. 108. 737. sec.
d Wilson v. Troup, ub. sup.
& Roberts v. Dixall, 3 Eq. Cas. Abr. 668. pl. 19. Kenworthy v. Bate, 6 Vesey, 793.