the reason and policy of the doctrine, that a trust to raise money out of the profits of land, will include a power to sell or mortgage, and such a construction of the power has been long an established principle in the courts of equity. But if the execution of a power be prescribed by a particular method, it implies, that the mode proposed is to be followed, and it contains a negative upon every other mode." This rule more strongly applies to extended, than to restricted executions of powers, for omne magis in se minus continet, and, generally, the execution of a power will be good, though it falls short of the full extent of the authority. In respect, however, to the execution of a power to sell contained in a mortgage, I apprehend, that the specific directions usually contained in the mortgage, and particularly when they are the subject of a statute provision, will preclude all departure from those directions, and consequently that the power in a mortgage to sell would not include a power to lease. It is declared by statute in this state, that where any formalities are directed by the grantor of a power, to be observed in the execution of the power, the observance of them is necessary; and the intentions of the grantor as to the mode, time, and conditions of its execution, unless those conditions are merely nominal, are to be observed. A very vexatious question has been agitated, and has distressed the English courts, from the early case of Graves v. Mattison, down to the recent decision in Wynter v. Bold, as to the time at which money provided for children's portions, may be raised by sale, or mortgage

a Lingon v. Foley, 2 Ch. Cas. 205. Sheldon v. Dormer, 2 Vern. 310. Trafford v. Ashton, 1 P. Wms. 415. Allan v. Backhouse, 2 Ves. & Beam. 65.

b Joy v. Gilbert, 2 P. Wms. 13. Mills v. Banks, 3 ibid. 1.

c Isherwood v. Oldknow, 3 Maule & Selw. 382. Sugden on Pow ers, 447. 449. 2d London ed.

d N. Y. Revised Statutes, vol. i. 786. sec. 119, 120, 121.

e Sir T. Jones, 201.

f 1 Simon & Stuart, 507.

of a reversionary term. The history of the question is worthy of a moment's attention as a legal curiosity, and a sample of the perplexity and uncertainty which complicated settlements "roll'd in tangles," and subtle disputa. tions, and eternal doubts, will insensibly incumber and oppress a free and civilized system of jurisprudence. If nothing appears to gainsay it, the period at which they are to be raised is presumed to have been intended to be, that which would be most beneficial to those for whom the portions were provided. 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 the 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 150 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 marriage 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. The inclination of the Court of Chancery has been against raising portions out of reversionary terms, by sale or mortgage, in the lifetime of the parent, as lead

a

a Sir Joseph Jekyll, in Evelyn v. Evelyn, 2 P. Wms. 661. 14 Viner, 240. pl. 11.

ing to a sacrifice of the interests of the person in reversion or remainder; and modern settlements usually contain a prohibitory clause against it.a

A mortgage may arise in equity out of the transactions of the parties, without any deed or express contract for that special purpose. 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. It was followed by the decision in Birch y Ellames, and the principle declared is, that the deposit is evidence of an agreement to make a mortgage, which will 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 deposit 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

a See Coote's Treatise on the Law of Mortgages, p. 147. to 163. and 1 Powell on Mortgages, p. 74. to 100. Boston ed. 1828, where the 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 stated, would be too remote and void under the N. Y. Revised Statutes, vol. i. 723. sec. 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.

b 1 Bro. 269.

c 2 Anst. 427.

deposit. 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. The decisions on this subject have, however, shown a determined disposition to keep within the letter of the precedents, and not to give the doctrine further extension; 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. 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 mortgagee.d

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, or so much as remains unpaid, and the principle is founded in natural equity, and seems to be inherent in the English equity jurisprudence. This equitable mortgage will bind the vendee and his heirs, and volunteers, and all other purchasers, from the vendee, with notice of the existence of the vendor's equity. Prima facie the lien

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. Lord Ellenborough, in Doe v. Hawke, 2 East's Rep. 486. Ex parte Kensington, 2 Ves. & Beame, 79.

c Ex parte Coombe, 4 Madd. Rep. 133. Lucas v. Dorrien, 7 Taunt. Rep. 279. Ex parte Coming, 9 Vesey, 115. Ex parte Bulteel, 2 Cor, 243. Norris v. Wilkinson, 12 Vesey, 192. Ex parte Pearse, 1 Buck. B. C. 525.

d Berry v. Mutual Ins. Company, 2 Johns. Ch. Rep. 603. VOL. IV.

19

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 real or other personal security, or where the object of the sale was not money, but some collateral benefit." In Mackreth v. Symmons, 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; and it has been extensively recognised and adopted in these United States. It has been a question much discussed, 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 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 covenant 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. But taking a note, bill, or bond, with distinct

a Chapman v. Tanner, 1 Vern. 267. Lord Hardwicke, in Walker v. Preswick, 1 Vesey, 622. Lord Eldon, in Austin v. Halsey, 6 Vesey, 483. Sir Wm. Grant, in Naire v. Rowse, Ibid. 759. Hughes v. Kearney, 2 Sch. & Lef. 132. Meigs v. Dimock, 6 Conn. Rep. 458. b 15 Vesey, 329.

c Dig. lib. 18. tit. 1. I. 19.

d Cole v. Scot, 2 Wash. 191. Cox v. Fenwick, 3 Bibb. 183. Gar

Fish v. Howland, 1 Paige,
Gilman v. Brown, 1 Ma-

son v. Green, 1 Johns. Chan. Rep. 308. 20. Bayley v. Greenleaf, 7 Wheaton, 46. son's Rep. 191. Watson v. Wells, 5 Conn. Rep. 468. Jackman v. Hallock, 1 Hammond's Ohio Rep. 318. But this doctrine of an equitable lien for the purchase money has been judicially declared not to exist in Pennsylvania, though it had previously been assumed to exist there by very distinguished judges. Kauffelt v. Bower, 7 Serg. & Rawle, 64. Semple v. Burd, Ibid. 286. It is said also not to have been adopted in all its extent in Connecticut. Daggett, J. 6 Conn. Rep. 464.