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. Taking the deposit of stock is also a waiver of the lien ;a and, notwithstanding the decision of the master of the rolls, in Grant v. Mills, 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.

It has also been decided by the Supreme Court of the United States, after a full examination of the question, and upon grounds that will probably command general assent, that the vendor's lien cannot be retained against creditors, holding under a bona fide conveyance from the vendee.d The lien will prevail, however, against a judgment creditor of the vendor, intervening between the time of the agreement to convey and receipt of the consideration money, and the actual conveyance. Under these circumstances, the vendor is justly considered in the light of a trustee for the purchaser. But in that case, an intervening mortgagee, or purchaser for a valuable consideration, and without notice, would be preferred.

c Gilman v. Brown, 1 Mason, 191. 4 Wheaton, 255. S. C. In the Roman law, from whence the doctrine of the vendor's lien is supposed to be derived, the absolute property passed to the buyer if the seller took another pledge, or other personal security; venditæ vero res et traditæ non aliter emptori acquiruntur, quam si is venditori pretium solverit, vel alio modo ei satisfecerit, veluti expromissore aut pignore dato. Inst. 2. 1. 41. Hoc nomine fidejussor, hic intelligi videtur. Vinnius in Inst. h. t.

d Bayley v. Greenleaf, 7 Wheaton, 46.

e Finch v. Earl of Winchelsea, 1 P. Wms. 277. The question, whether taking a bond or bill destroyed the lien, has been quite a

(2.) Of the mortgagor's estate and Equity of Redemp

tion.

Upon the execution of a mortgage, the legal estate vests in the mortgagee, subject to be defeated upon performance of the condition. There is usually in English mortgages a clause inserted in the mortgage, that until default in payment, the mortgagor shall retain possession. This was a very ancient practice, as early as the time of James the First; and if there be no such express agreement in the deed, it is the general understanding of the parties, and at this day almost the universal practice, founded on a presumed or tacit assent. Technically speaking, the mortgagor has at law only a mere tenancy, and that is subject to the right of the mortgagee to enter immediately, and at his pleasure, if there be no agreement to the contrary. He may, at any time when he pleases, and before a default, put the mortgagor out of possession by ejectment, or other proper suit. This is the English doctrine, and I presume it prevails very extensively in the United States. The

vexed one in the books. In Fawell v. Healis, Amb. 724. taking a bond was considered to have destroyed the lien. In Blackburn v. Gregson, 1 Bro. 420. 1 Cox, 90. S. C. the question was raised and left undecided, though Lord Loughborough said, he had a decided remembrance of a case, where it was held the lien continued, although a bond was given. In Winter v. Anson, 1 Simon & Stuart, 434. it was held, that there was no lien where the bond was taken for the purchase money, payable at a future day, with interest. It was dedecided to the same effect in Wragg v. the Comptroller-General, 2 Dess. S. C. R. 509. But we have decisions directly to the contrary, in White v. Casanove, 1 Hayw. & Johns. 106. Cox v. Fenwick, 2 Bibb. 183. and Kennedy v. Woolfolk, 3 Hayw. 197. and Mr. Justice Story also draws a contrary conclusion, in Gilman v. Brown, 1 Mason's Rep. 214.; and he considers a note, bond, or covenant from the vendee, to be consistent with the preservation of the lien. The same opinion is given in Kennedy v. Woolfolk, 3 Haywood, 197. and in Fish v. Howland,1 Paige, 20. where this doctrine of lien is laid down, with comprehensive, accuracy and precision.

a Birch v. Wright, 1 Term Rep. 378. Buller, J. Rockwell v. Bradley, 2 Conn. Rep. 1. Blaney v. Bearce, 2 Greenleaf, 132. Erskine v

b

mortgagor cannot be treated by the mortgagee as a trespasser, nor can his assignee, until the mortgagee has regularly recovered possession, by writ of entry or ejectment. The mortgagor in possession is considered to be so with the mortgagee's assent, and is not liable to be treated as a trespasser. The mortgagor is allowed in New-York even to sustain an action of trespass against the mortgagee, or those claiming under him, if he undertakes an entry while the mortgagor is in possession. It was anciently held, that so long as the mortgagor remained in possession, with the acquiescence of the mortgagee, and without any covenant for the purpose, he was a tenant at will. This is also the language very frequently used in the modern cases; but its accuracy has been questioned, and the prevailing doctrine is, that he is not a tenant at will, for no rent is reserved; and so long as he pays his interest, he is not accountable, in the character of a receiver, for the rents. The contract between the parties is for the payment of interest, and not for the payment of rent. He is only a tenant at will, sub modo. He is not entitled to the emblements, as other tenants at will are; and he is no better than a tenant at sufferance, and is not entitled to notice to quit before an ejectment can be maintained against him.4

Townsend, 2 Mass. Rep. 493. Parsons, Ch. J. in Newall v. Wright, 3 Mass. Rep. 138. Colman v. Packard, 16 Ibid. 39. Simpson v. Ammons, 1 Binney, 176. M'Call v. Lenox, 9 Serg. & Rawle, 302. though I should infer from the language of the last case cited, that the ejectment would not lie until after a default.

a See the opinion of Jackson, J. in Fitchbury Cotton Man. Co. v. Melven, 15 Mass. Rep. 268. and the case of Wilder v. Houghton, 1 Pick. 87.

b Runyan v. Mersereau, 11 Johns. Rep. 534. Jackson v. Bronson, 19 Ibid. 325. Dickenson v. Jackson, 6 Cowen, 147.

c Powsely v. Blackman, Cro. Jac. 659.*

C

d Keech v. Hall, Doug. 21. Moses v. Gallimore, Ibid. 279. Buller, J. in Birch v. Wright, 1 Term Rep. 383. Thunder v. Belcher, 3 East, 449. Sir Thomas Plumer, in Christopher v. Sparke, 2 Jac. & Walk. 234. 5 Bingham, 421. With respect to notice to quit, the American

But whatever character we may give to the mortgagor in possession by sufferance of the mortgagee, he is still a tenant. He is a tenant, however, under a peculiar relation, and he has been said to be a tenant from year to year, or at will, or at sufferance, or a quasi tenant at sufferance, according to the shifting circumstances of the case; and perhaps the denomination of mortgagor conveys distinctly and precisely the qualifications which belong to his anomalous character, and is the most appropriate term that can be used.b

It is the language of the English books, that a mortgagor, being in the nature of a tenant at will, has no power to lease the estate; and his lessee upon entry (but not the mortgagor) would be liable to be treated by the mortga

authorities differ. In Massachusetts, Connecticut, and Pennsylvania, and probably in other states, the English rule is followed, and the notice is not requisite. Rockwell v. Bradley, 2 Conn. Rep. 1. Wakenan v. Banks, Ibid. 445. Groton v. Boxborough, 6 Mass. Rep. 50. Duncan, J. in 9 Serg & Rawle, 311. But in New-York, by a series of decisions, notice to quit was required before the mortgagor could be treated as a trespasser, and subjected to an action of ejectment. It was required, on the ground of the privity of estate, and the relationship of landlord and tenant, and which is a tenancy at will by implication; but the rule did not apply to a purchaser from the mortgagor, for there the priority had ceased. Jackson v. Laughhead, 2 Johns. Rep. 75. Jackson v. Fuller, 4 lbid. 215. Jackson v. Hopkins, 18 Ibid. 487. But now by the N. Y. Revised Statutes, vol. ii. 312. sec. 57. all this doctrine of notice is superseded, and the action of ejectment itself, by a mortgagee or his assigns or representatives, abolished. The mortgagee is driven to rely upon a special contract for the possession, if he wishes it, or to the remedy by foreclosure and sale, upon a default; and this alteration in our local law would appear to be a reasonable provision, and a desirable improvement. The action of ejectment not being a final remedy, is vexatious, and the possession under it terminates naturally in a litigious matter of account, and a deterioration of the premises.

a Patridge v. Bere, 5 Barnw. & Ald. 604.

b Buller, J. in Birch v. Wright, 1 Term Rep. 383. Sir Thomas Plumer, in Cholmondelly v. Clinton, 2 Jac. & Walk. 183. Coote on the Law of Mortgage, 327–334. Coventry's Notes to 1 Powell, 157. 175. edit. Boston. 1828.

gee as a trespasser, or disseisor, or lessee, at his election. This is supposed by Mr. Coventry to be the better opinion.a The lease of the mortgagor is said to amount to a disseisin of the mortgagee, which renders the lessee upon entry a wrong-doer. But the justice and good sense of the case is, that the assignee of the mortgagor is no more a trespasser than the mortgagor himself; and the mortgagor has a right to lease, sell, and in every respect to deal with the mortgaged premises as owner, so long as he is permitted to remain in possession, and so long as it is understood and held, that every person taking under him takes subject to all the rights of the mortgagee, unimpaired and unaffected, Nor is he liable for the rents; and the mortgagee must recover the possession by regular entry, by suit, before he can treat the mortgagor, or the person holding under him, as a trespasser. This is now the better and the more intelligible American doctrine; and in New-York, in particular, since the action of ejectment by the mortgagee is abolished, a court of law would seem to have no jurisdiction over the mortgagee's interest. He is not entitled to the possession, nor to the rents and profits; and he is turned over entirely to the courts of equity. In ascending to the view of a mortgage in the contemplation of a court of equity, we leave all these technical scruples and difficulties behind us. Not only the original severity of the common law, treating the mortgagor's interest as resting upon the exact performance of a condition, and holding the forfeiture or the breach of a condition to be absolute, by non-payment or tender at the day, is entirely relaxed; but the narrow and precarious character of the mortgagor at law is changed, under the more enlarged and liberal jurisdiction of the courts of equity. Their influence has reached the courts of law, and the case of mortgages is one of the most

a 1 Powell, 159. note 160-162. See also Thunder v. Belcher, 3 East. 449.

b Jackson, J. in 15 Mass. Rep. 270. Parker, Ch. J. 1 Pick. 90. Duncan, J. 9 Serg. & Rawle, 311. N. Y. Revised Statutes, vol. ii. 312.