a

splendid instances in the history of our jurisprudence, of the triumph of equitable principles over technical rules, and of the homage which those principles have received by their adoption in the courts of law. Without any prophetic anticipation, we may now well say, that "returning justice lifts aloft her scale." The doctrine now regarded as a settled principle, was laid down in the reign of Charles I. very cautiously, and with a scrupulousness of opinion. "The court conceived, as it was observed in chancery, that the said lease, being but a security, and the money paid, though not at the day, the lease ought to be void in equity." The equity of redemption grew in time to be such a favourite with the courts of equity, and was so highly cherished and protected, that it became a maxim, that" once a mortgage always a mortgage." The object of the rule is to prevent oppression, and contracts made with the mortgagor to lessen, embarrass, or restrain the right of redemption, are regarded with jealousy, and generally set aside as dangerous agreements, founded in unconscientious advantages assumed over the necessities of the mortgagor. The doctrine was established by Lord Nottingham as early as 1681, in Newcomb v. Bonham;b for, in that case the mortgagor had covenanted, that if the lands were not redeemed in his lifetime, they should never be redeemed; but the chancellor held, that the estate was

a Emanuel College v. Evans, 1 Rep. in Ch. 10. In the case of Rosecerrick v. Barton, 1 Cases in Ch. 217. Sir Matthew Hale, when Chief Justice, showed that he had not risen above the mists and prejudices of his age on this subject, for he complained very severely of the growth of equities of redemption, as having been too much favoured, and been carried too far. In 14 Richard II. the Parliament, he said, would not admit of this equity of redemption. By the growth of equity, the heart of the common law was eaten out. He complained that an equity of redemption was transferrable from one to another, though at common law a feoffment or fine would have extinguished it; he declared he would not favour the equity of redemption beyond existing precedents.

b 1 Vern. 7. 2 Vent. 364. 1 Vern. 232. S. C.

redeemable by the heir, notwithstanding the agreement; and though the decree in that case was subsequently reversed, it was upon special circumstances, not affecting the principle. The same general doctrine was pursued in Howard v. Harris,a and it pervades all the subsequent and modern cases on the subject, both in England and in this country.b

The equity doctrine is, that the mortgage is a mere security for the debt, and only a chattel interest, and that antil a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate tantamount to the fee at law, and it is, accordingly, held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law. The courts of law have, also, by a gradual and almost insensible progress, adopted these equitable views of the subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction. Except as against the mortgagee, the mortgagor, while in possession, and before foreclosure, is regarded as the real owner, and a freeholder, with the civil and political rights belonging to that character; whereas the mortgagee, notwithstanding the form of the convey

a 1 Vern. 190.

b In Seton v. Slade, 7 Vesey, 275. Lord Eldon observed, that the doctrine of the court gave countenance to the strong declaration of Lord Thurlow, that no agreement of the parties would alter the right of redemption. And as to the recognition of the doctrine with us, see Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. Clark v. Henry, 2 Cowen's Rep. 324. Wilcox v. Morris, 1 Murphy, 117. In Newcomb v. Bonham, 1 Vern. 7. Lord Nottingham held, that the mortgagee might compel the mortgagor, at any time, to redeem, or be foreclosed, even though there was a special agreement in the mortgage that the mortgagor was to have his whole lifetime to redeem; but his successor, on a rehearing, (1 Vern. 232.) reversed his decision, and held, that the party had his whole lifetime, according to his contract; and this last decree was affirmed in Parliament.

c Casborne v. Scarfe, 1 Atk. 603. 2 Jac. & Walk. 194. note S. C. VOL. IV.

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ance, has only a chattel interest, and his mortgage is a mere security for a debt. This is the conclusion to be drawn from a view of the English and American authorities. The equity of redemption is not liable, under the English law, to sale or execution as real estate. It is held to be equitable assets, and is marshalled according to equity principles. But, in this country, the rule has very extensively prevailed, that an equity of redemption was vendible as real property on an execution at law, and it is also chargeable with the dower of the wife of the mortga gord On the other hand, the estate of the mortgagee, be fore foreclosure, is not the subject of execution, not even though there has been a default, and the condition of the mortgage forfeited. The English policy led to an early adop tion of these just and reasonable views of the character of a

a The King v. St. Michaels, Doug. Rep. 630. The King v. Edington, 1 East's Rep. 288. Jackson v. Willard, 4 Johns. Rep. 41. Runyan v. Mersereau, 11 ibid. 534. Huntington v. Smith, 4 Conn. Rep. 235. Willington v. Gale, 7 Mass. Rep. 138. M'Call v. Lenox, 9 Serg. & Rawle, 302. Ford v. Philpot, 5 Harr. & Johns. 312. Wilson v. Troup, 2 Cowen's Rep. 195. Eaton v. Whiting, 3 Pick. Rep. 484. Blaney v. Bearce, 2 Greenleaf, 132. The growth and consolidation of the American doctrine, that until foreclosure the mortgagor remains seised of the freehold, and that the mortgagee has, in effect, but a chattel interest, was fully shown, and ably illustrated, by the Chief Justice of Connecticut, in Clark v. Beach, 6 Conn. Rep. 142.; and these general principles were not questioned by the court.

Lyster v. Dolland, 1 Vesey, jun. 431. Scott v. Scholey, 8 East's Rep. 467. Metcalf v. Scholey, 5 Bos. & Pull. 461.

c Plunket v. Penson, 2 Atk. 290. 1 Vesey, jun. 436. S. C.

d Waters v. Stewart, 1 Caines' Cases in Error, 47. Hobart v. Frisbie, 5 Conn. Rep. 592. Ingersoll v. Sawyer, 2 Pick. Rep. 276. Ford v. Philpot, 6 Harr. & Johns. 312. New-Hampshire would appear, however, to form an exception to the general practice of selling an equity of redemption on execution at law. Woodbury, J. in 2 N. H. Rep. 16.

e Jackson v. Willard, 4 Johns. Rep. 41. Blanchard v. Colburn, 16 Mass. Rep. 345. Eaton v. Whiting, 3 Pick. Rep. 484. Huntington v. Smith, 4 Conn. Rep. 235

mortgagor, and it was settled in the reign of Charles fl., that the executor, and not the heir of the mortgagee in fee, was entitled to the mortgage money; for, as Lord Nottingham observed, the money first came from the personal estate, and the mortgagee's right to the land was only as a security for the money. It was, also, by the statute of 7 and 8 Wm. III. that mortgagors in possession were allowed to vote, for members of Parliament.

The mortgagor may exercise the rights of an owner while in possession, provided he does nothing to impair the security; and a court of chancery will always, on the application of the mortgagee, and with that object in view, stay the commission of waste by the process of injunction, But an action at law by the mortgagee, will not lie for the commission of waste, because he has only a contingent interest; and yet actions of trespass, quare clausum fregit, by the mortgagee, for the commission of waste, by destroying timber, or removing fixtures, have been sustained against the mortgagor in possession, in those states, where they have no separate equity courts with the plenary powers of a court of chancery. The interference with the discretion of the mortgagor is not carried further, and, in ordinary cases, he is not bound to repair, and keep the estate in good order; and there is no instance in which a court of equity has undertaken to correct permissive waste, or to compel the mortgagor to repair; though cases of negligence rapidly impairing the security, without any overt act whatever, would address themselves with peculiar force to the courts of equity in this state, since the mortgagee is now deprived, by statute, of the power of taking the estate

a Thornborough v. Baker, 3 Swanst. Rep. 628. Tabor v. Tabor, ibid. 636.

b Lord Hardwicke, in Robinson v. Litton, 3 Atk. 209. Ibid. 723Brady v. Waldron, 2 Johns. Ch. Rep. 148.

c Peterson v. Clark, 15 Johns. Rep. 205.

d Smith v. Goodwin, 2 Greenleaf, 173. Stowell v. Pike, ibivh, 397. e Campbell v. Macomb, 4 Johns, Ch. Rep. 534.

ther. The principle of equity in these cases, is clear and luminous, and it is deeply ingrafted in general jurispru dence.a

(3.) Of the estate and rights of the mortgagee.

He

We have seen, that the mortgagee may, at any time, enter and take possession of the land, by ejectment or writ of entry, though he cannot make the mortgagor account for the past, or by-gone rents, for he possessed in his own right, and not in the character of receiver. may, without suit, obtain possession of the rents and profits from a lessee existing prior to the mortgage, on giving him notice of his mortgage, and requiring the rent to be paid him, and in default he may distrain. The case of Moss v. Gallimore applies the right and the remedy of the inortgagee, to the rent in arrear at the time of the notice, as well as to the rent accruing subsequently, and that case was cited, and the principle of it not questioned, in Alchorne v. Gomme; though it would seem to be now understood in chancery, that the mortgagor is not accountable as receiver for the rents, and that the rent due prior to the notice belongs to the mortgagor. But the case of Moss v. Gallimore has been considered as good law, to the whole extent of it, by the courts of law in this country, and the distinction taken is between.

a Sir Wm. Harbert's case, 3 Co. 14. 1 Powell on Mortgages, 342. b. Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Scribner v. Hickok, 4 ibid. 530.

b Lord Hardwicke, in Mead v. Lord Orrery, 3 Atk. 244. and Higgins v. York Buildings Company, 2 Atk. 107. Parker, Ch. J. in Wilder v. Houghton, 1 Pick. 90.

• Moss v. Gallimore, Doug. Rep. 279. Buller, J. in Birch v. Wright, 1 Term Rep. 378.

d 2 Bing. 54.

e Ex parte Wilson, 2 Ves. & Beam. 252.

f Sanders v. Van Sickle and Garrison, 3 Halsted, 313. M.Kircher v. Hawley, 16 Johns. Rep. 289.