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preferred. In the language of one of the cases, he hath “ both law and equity for him.” The legal title and equal equity prevail over the equity.
The Irish registry act or 6 Anne, has been considered as taking away the doctrine of tacking, for it makes registered deeds effectual according to the priority of registry. The priority of registry is made the criterion of title to all intents and purposes whatsoever, and this Lord Redesdale considered to be the evident intention of the statute, but that it did not exclude any thing which affects the conscience of the party who claims under the registered deed, nor give a priority of right to commit a fraud. This leaves the doctrine of notice of a prior unregistered deed in full force : and this is the true and sound distinction which pre**** vails in the United States, and I presume that the English
law of tacking is with us very generally exploded. Liens are I to be paid according to the order of time in which they re
spectively attached. This is the policy and meaning of our registry acts, and, consequently, all incumbrancers are to be made parties to a bill to foreclose, that their claims may be chargeable in due order. There is no natural equity in tacking, and when it supersedes a prior incum
a The law established by these decisions has been regularly transmitted down in Westminster Hall unshakenly to this day. Belchier v. Butler, 1 Eden, 523. Frere v. Moore, 8 Price, 475.
6 i Sch. f Lef. 157. 430. In M`Neil v. Cahill, 2 Bligh, 228. on appeal to the House of Lords, in an Irish case, it was declared, that if the deed posterior in date and execution, be first registered, even with notice of the other deed, it has priority both in law and equity, but this does not apply to the case of a fraudulent priority of registry
c Grant v. U.S. Bank, 1 Caines' Cases in Error, 112. Feb. 1804. This was the earliest case that I am aware of in this country, destroying the system of tacking. In that case, I had the satisfaction of hearing that profound civilian, as well as illustrious statesman, General Hamilton, make a masterly aitack upon the doctrine, which he insisted was founded on a system of artificial reasoning, and encouraged frauda See also, 11 Serg. & Rawle, 223. 3' Pick. 50. 6 Munf. 560.
d Haines v. Beach, 3 Johns. Ch. Rep. 459.
brance it works manifest injustice. By acquiring a still more antecedent incumbrance, the junior party acquires, by substitution, the rights of the first incumbrancer over the purchased security, and he justly acquires nothing more. The doctrine of tacking is founded on the assumption of a principle which is not true in point of fact; for, as between A., whose deed is honestly acquired, and recorded to-day, and B., whose deed is with equal honesty acquired and recorded to-morrow, the equities upon the estate are not equal. He who has been fairly prior in point of time, has the better equity, for he is prior in point of right.
With the abolition of the English system of tacking, we are relieved from a multitude of refined distinctions, which have given intricacy to this peculiar branch of equity jurisprudence. The doctrine of notice is also of very extensive application througnout the law of mortgage, and it is very greatly surcharged with cases abounding in refinements. It is, indeed, difficult to define, with precision, the rules which regulate implied or constructive notice, for it depends upon the infinitely varied circumstances of each case. The general doctrine is, that whatever puts a party upon inquiry, amounts, in judgment of law, to notice, provided the inquiry becomes a duty; as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding. So, notice of a deed is notice of its contents, and notice to an agent is notice to his principal. purchaser with notice, from a purchaser without notice, can Iprotect himself under the first purchaser, who was duly auIthorized to sell; and a purchaser without notice, from a pur
chaser with notice, is equally protected, for he stands perfectly innocent. There is, also, this further rule on the subject, that the purchaser of an estate in the possession of tenants, is chargeable with notice of the extent of their interests as tenants, for, having knowledge of the tenancy, he is bound to inform himself of the conditions of the lease.
a The law concerning notice, express and implied, is very amply discussed by Mr. Coventry, in his notes to Powell on Mortgages, vol. ii.
IV. Of foreclosure.
The equity of redemption which exists in the mortgagor, after default in payment, may be barred or foreclosed, if the mortgagor continues in default after due notice to redeem. The ancient practice was by bill in chancery to procure a decree for a strict foreclosure of the right to redeem, by which means the lands became the absolute property of the mortgagee. This is the English practice to this day, though sometimes the mortgagee will pray for, and obtain a decree for a sale of the mortgaged premises, under the direction of an officer of the court, and the proceeds of the sale will, in that case, be applied towards the discharge
ch. 14. p. 561—662. and the American editor, Mr. Rand, has, with a thorough accuracy, collected all the cases and decisions in this country appertaining to the subject. The immense body of English learning with which Mr. Coventry has enriched every part of the original work of Powell, is not only uncommon, but very extraordinary. There never were two editors who have been more searching, and complete, and gigantic in their labours. The work has become a mere appendage to the notes, and the large collections of the American editor, piled upon the vastly more voluminous commentaries of the English editor, have unitedly overwhelmed the text, and rendered it somewhat difficult for the reader to know, without considerable attention, upon what ground he stands.
Conati imponere pelio ossam
atque ossæ frondosum involvere olympum. I acknowledge my very great obligations to those editors for the assistance I have received from their valuable labonrs ; but I cannot help thinking, that Mr. Coventry would have better accommodated the profession, if he had written an original treatise on the subject, and we should then probably have had, what is now wanting in the present work, unity of plan, adaptation of parts, and harmonious proportion. Several of his essays in the notes, as, for instance, those relating to receivers-equitable assets-voluntary settlements, the wife's equity-when debts, as between the representatives of the deceased, are to be charged upon the real, and when on the personal estate-interest and usury, &c. have no very close application to mortgages. Mr. Coote's " Treatise on the Law of Mortgage,” is neat, succinct, and accurate, and free from several of the objections which have been suggested.
of the incumbrances according to priority. The latter practice is evidently the most beneficial to the mortgagor, as well as the most reasonable and accurate disposition of the pledge. It prevails in New York, Maryland, Virginia, South Carolina, Tennessee, Kentucky, and probably in several other states. But in the New-England states, the practice of a strict foreclosure would seem to prevail, and the creditor takes the estate to himself, instead of having it sold, and ihe proceeds applied. In Massachusetts and Maine, the mortgagor has three years, and in Connecticut fifteen years, and in New-Hampshire one year, to redeem after entry and seisin by the mortgagee, upon breach of the condition, or under the decree of foreclosure. The severity of the foreclosure without a sale, is mitigated by the practice of enlarging the time to redeem from six months to six months, or for shorter periods, according to the equity arising from circumstances. But, in England, and with us, the practice of selling the land by the party himseli, or by an authorized trustee, under a power inserted in the mortgage, has extensively prevailed. The course in Ireland, as well as here, is to decree a sale instead of a foreclosure, and if the sale produces more than the debt, the surplus goes to the mortgagor, and if less, the
a Mondey v. Mondey, 1 Ves. & Beames, 223.
Johns. Ch. Rep. passim. Nelson v. Carrington, 4 Munf. 332. Downing v. Palmateer, 1 Monroe, 66. Humes v. Shelby, 1 Tenn. Rep. 79. Hurd v. James, ibid. 201. Rodgers v. Jones, 1 M Cord's Ch. Rep. 221. Paunell v. Farmers' Bank, 7 Harr. & Johns. 202. David y. Grahame, 2 Harr. & Gill, 94.
c Lockwood v. Lockwood, 1 Day, 295. Lyon v. Sanford, 5 Conn. Rep. 544. Swift's Dig. vol. i. 656. 683. Erskine v. Townsend, 2 Mass. Rep. 493. Baylies v. Bussen, 5 Greenleaf, 153. Swett v. Horn, 1 N. H. Rep. 332. The practice of a strict foreclosure has also been allowed in North Carolina. Spiller v. Spiller, 1 Hayw. 482.
d Edwards v. Cunliffe, 1 Madd. Rep. 287. Perine v. Dunn, 4 Johns. Ch. Rep. 190.
mortgagee has his remedy for the difference. Phis course was recommended by Lord Erskine as more analogous to the relative situation of lender and borrower, and it was the English practice a century ago, in cases where the security was defective. If the mortgagee proceeds by bill for the technical foreclosure, the estate becomes his property in the character of a purchaser ; and the general understanding formerly was, that by taking the pledge to himself, he took it in satisfaction of the debt. But, according to the case of Took v. Hartley," if the mortgagee sells the estate, after the foreclosure, fairly, and for the best price, he may proceed at law against the mortgagor, upon his bond, for the difference, though he cannot have recourse at law for the deficiency, so long as he keeps the estate, because the value of it is not ascertained, and the mortgagee cannot say what proportion of the debt remains due. It has likewise been repeatedly held, that an action at law by the mortgagee, alter foreclosure, for the balance of the debt due him, opens it, and lets in the mortgagor to redeem. There has been some embarrassment and conflict of opinion manifested in the cases, on the point whether the mortgagee had his remedy at law after a foreclosure, and without a sale of the estate. The better opinion is, that after a foreclosure with or without a subsequent sale, the mortgagee may sue at law for the deficiency, to be ascertained in the one case by the proceeds of the sale, and in the other by an estimate and proof of the real value of the pledge at the time of the foreclosure. Whether the action at law will open the foreclosure in equity, and let in
a 2 Bro. 125. Dickens, 785. S. C. b Dashwood v. Blythway, 1 Eq. Cas. Abr. 317. pl. 3. Mosely, 196. S. C. Perry v. Barker, 13 Vesey, 198.
c Lord Thurlow's opinion, as represented by Sir Samuel Romilly, and by Lord Eldon, in Perry v. Barker, 8 Vesey,527. Hatch v. White, 2 Gallis. 152. Amory v. Fairbanks, 3 Mass. Rep. 562. Globe Ins. Co. v. Lansing, 5 Cowen, 380. Omaly v. Swan,3 Mason, 474.