gor. The tender of the debt was required to be at the time and place prescribed; and if there was no place mentioned in the contract, the mortgagor was bound to seek the mortgagee, and a tender upon the land was not sufficient. (b) If there was no time of payment mentioned, the mortgagor had his whole lifetime to pay, unless he was quickened by a demand; but if he died before the payment, the heir could not tender and save the forfeiture, because the time was passed. (c) If, however, the money was declared to be payable by the mortgagor, or his heirs, then the tender might be made by them at any time indefinitely after the mortgagor's death, unless the performance was hastened by request; and if a time for payment was fixed, and the mortgagor died in the mean time, his heir might redeem, though he was not mentioned, for he had an interest in the condition. (d) * If the representatives of the mortgagee were *141 mentioned in the feoffment, whether they were heirs, executors, or assignees, the payment could rightfully be made to either of them. (a)

(3) The Defeasance. The condition upon which the land is conveyed is usually inserted in the deed of conveyance, but the defeasance may be contained in a separate instrument; and if the deed be absolute in the first instance, and the defeasance be executed subsequently, it will relate back to the date of the principal deed, and connect itself with it, so as to render it a security in the nature of a mortgage. The essence of the defeasance is, that it defeats the principal deed, and makes it void if the condition be performed. In order, however, to render the deed a security against subsequent purchasers and mortgagees, it is necessary that the deed and defeasance should be recorded together. An omission to have the defeasance registered would operate to make the estate, which was conditional between the parties, absolute against every person but the original parties and their heirs. (b) The practice of placing the conveyance in fee and (b) Co. Litt. 210, b. (c) Litt. sec. 337.

(d) The Lord Cromwell's Case, 2 Co. 79; Litt. sec. 334; Co. Litt. 208, b.

(a) Goodall's Case, 5 Co. 95; Co. Litt. 210. This case of Goodall, and Wade's Case, 5 Co. 114, are samples of the discussions on what was, in the time of Lord Coke, a very momentous question, whether the absolute forfeiture of the estate had or had not been incurred by reason of nonpayment at the day. Such a question, which would now be only material as to the costs, was in one of those cases decided, on error from the K. B., after argument and debate, by all the judges of England.

(b) Dey v. Dunham, 2 Johns. Ch. 182; New York Revised Statutes, i. 756; Har

*142 *the condition or defeasance which is to qualify it, in separate instruments, is tiable to accidents and abuse, and may be productive of injury to the mortgagor; and the Court of Chancery has frequently, and very properly, discouraged such transactions. (a) This must more especially be productive of hazard to the rights of the mortgagor, in those states where the powers of a court of equity are very sparingly conferred, and where the character of an instrument of defeasance is to be determined upon the strict technical principles of the common law, and must take effect concurrently with the deed, as part of the one and the same transaction. (b)

In equity, the character of the conveyance is determined by the clear and certain intention of the parties; and any agreement in the deed, or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the repayment of money, will make it such, and give to the mortgagor the right of redemption. (c) A deed absolute on the face of it, and though registered as a deed, will be valid and effectual as a mortgage, as between the parties, if it was intended by them to be merely a security for a debt, and this would be the case though the defeasance was by an agreement resting in parol; for parol evidence is admissible in equity, to show that an absolute deed was rison v. The Trustees of Phillips's Academy, 12 Mass. 456; Blaney v. Bearce, 2 Greenl. 132; Wright v. Bates, 13 Vt. 341. The words of the New York statute are, that if a deed appears, by a separate instrument, to have been intended as a mortgage, it shall be deemed a mortgage; and the grantee shall not derive any advantage from the recording of it, unless the defeasance be also recorded, and at the same time. [Stoddard v. Rotton, 5 Bosw. 378.] In Pennsylvania, upon a similar point, it has been decided, that if the separate defeasance be not recorded, the absolute deed is to be considered as an unrecorded mortgage, and postponed, according to the rule in that state in such cases, to a subsequent judgment creditor. Friedley v. Hamilton, 17 Serg. & R. 70.

(a) Lord Talbot, in Cotterell v. Purchase, Cases Temp. Talbot, 89; Baker v. Wind, 1 Ves. Sen. 160. In New Hampshire this evil is guarded against by statute of July 3d, 1829, which declared that no estate in fee should be defeated or incumbered by any agreement or writing of defeasance, unless the same be inserted in the conveyance as part thereof. But though such an absolute deed, accompanied with a bond to reconvey on payment of a loan, be void as against the creditors of the grantor, yet the agreement constitutes a secret trust, which might, perhaps, be enforced in equity as between the parties. Tifft v. Walker, 10 N. H. 150.

(b) Lund v. Lund, 1 N. H. 39; Bickford v. Daniels, 2 id. 71; Runlet v. Otis, ib. 167; Erskine v. Townsend, 2 Mass. 493; Kelleran v. Brown, 4 id. 443; Stocking v Fairchild, 5 Pick. 181; Newhall v. Burt, 7 Pick. 157.

(c) Taylor v. Weld, Mass. 109; Cary v. Rawson, 8 id. 159; Wharf v. Howell, 5 Binney, 499; Menude v. Delaire, 2 Desaus. 564; Reed v. Lansdale, Hardin, 6; James

intended as a mortgage, and that the defeasance has been * omitted or destroyed by fraud, surprise, or mistake. (a) *143 When it is once ascertained that the conveyance is to be considered and treated as a mortgage, then all the consequences appertaining in equity to a mortgage are strictly observed, and the right of redemption is regarded as an inseparable incident. (b) An agreement, at the time of the loan, to purchase for a given price, in case of default, is not permitted to interfere with the right of redemption; (c) though an agreement to give the mortgagee the right of preemption, in case of a sale, has been assumed to be valid. (d) 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

v. Morey, 2 Cowen, 246; Anon., 2 Hayw. 26; Dabney v. Green, 4 Hen. & Munf. 101, Thompson v. Davenport, 1 Wash. 125; Hughes v. Edwards, 9 Wheaton, 489; Hicks v. Hicks, 5 Gill & Johns. 75; Kelly v. Thompson, 7 Watts, 401; Holmes v. Grant, 8 Paige, 243.

(a) Maxwell v. Montacute, Prec. in Ch. 526; Lord Hardwicke, in Dixon v. Parker, 2 Ves. Sen. 225; Marks v. Pell, 1 Johns. Ch. 594; Washburne v. Merrills, 1 Day, 139; Strong v. Stewart, 4 Johns. Ch. 167; James v. Johnson, 6 id. 417; Clark v. Henry, 2 Cowen, 324; Murphy v. Trigg, 1 Monroe, 72; Slee v. Manhattan Company, 1 Paige, 48; Hunt v. Rousmaniere, 1 Peters, 1; Story, J., in Taylor v. Luther, 2 Sumner, 232, and in Flagg v. Mann, ib. 538; McIntyre v. Humphreys, 1 Hoff. Ch. 31; Brainerd v. Brainerd, 15 Conn. 575; Jenkins v. Eldredge, 3 Story, 292, 293. [Russell v. Southard, 12 How. 139; Hills v. Loomis, 42 Vt. 562; Hodges v. Tennessee M. & F. Ins. Co., 8 N. Y. (4 Seld.) 416; Reitenbaugh v. Ludwick, 31 Penn. St. 131, 138; Weathersly v. Weathersly, 40 Miss. 462, 469; Lincoln v. Wright, 4 De G. & J. 16; Douglass v. Culverwell, 3 Giff. 251. See Osgood v. Thompson Bank, 30 Conn. 27.]

It was adjudged in the Court of Errors in New York, in Webb v. Rice, 6 Hill, 219, that parol evidence was not admissible in a court of law, to show that a deed absolute on its face, was intended as a mortgage. [Watson v. Dickens, 12 Sm. & Marsh, 608; Bragg v. Massie, 38 Ala. 89, 106; Bryant v. Crosby, 36 Me. 562 (compare Richardson v. Woodbury, 43 Me. 206). Contra, Hannay v. Thompson, 14 Texas, 142.]

It is often a perplexed question, whether a conveyance was intended to be absolute or as a security merely: the cases were extensively reviewed by the Ass. V. Ch. of New York, in Brown v. Dewey, 1 Sandf. Ch. 57, and it was considered that the absence of the personal liability of the grantor to repay the money was not a conclusive test.

(b) Jaques v. Weeks, 7 Watts, 261; Wright v. Bates, 13 Vt. 341, s. P.

(c) Bowen v. Edwards, 1 Rep. in Ch. 221; Willett v. Winnell, 1 Vern. 488. But if the agreement be subsequent and independent, that the grantee will reconvey upon repayment of the purchase money, it does not convert the first deed into a mortgage. Kelly v. Thompson, 7 Watts, 401.

(d) Orby v. Trigg, 3 Eq. Cas. Abr. 599, pl. 24; 9 Mod. 2, s. c.

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does not permit agreements at the time of the loan, for a purchase, in case of default, to be valid.

*144 *

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. (e) He may become the purchaser at the sale of the mortgaged premises by the master under a decree; (a) and, in New York, he is permitted, by statute, to purchase at the sale under a power, though he be the person who sells, prôvided he acts fairly and in good faith; and in that case no deed is requisite to make his title perfect; but the affidavit of the sale, when recorded, is sufficient evidence of the foreclosure. (b) 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. (e)

(4) Of Conditional Sales and Covenants to pay.-The case of sale, with an agreement for a repurchase within a given time, is totally distinct, and not applicable to mortgages. Such conditional sales or 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. (d)

(e) Wrixon v. Cotter, 1 Ridgw. P. C. 295; Austin v. Bradley, 2 Day, 466. Lord Redesdale, in Hickes v. Cooke, 4 Dow, 16. [See Russell v. Southard, 12 How. 139, 154; Ford v. Olden, L. R. 3 Eq. 461; Sheckell v. Hopkins, 2 Md. Ch. 89; Locke v. Palmer, 26 Ala. 312; West v. Reed, 55 Ill. 242.]

(a) Ex parte Marsh, 1 Mad. 148.

(b) New York Revised Statutes, ii. 546, secs. 7, 14.

(c) Munroe v. Allaire, cited in 1 Caines, 19; Davoue v. Fanning, 2 Johns. Ch. 252; Downes v. Grazebrook, 3 Meriv. 200; Slee v. Manhattan Company, 1 Paige, 48.

(d) Barrell v. Sabine, 1 Vern. 268; Endsworth v. Griffith, 15 Viner, 468, pl. 8; Longuet v. Scawen, 1 Ves. Sen. 405; 1 Powell on Mortgages, 138, note T. If it be doubtful whether the parties intended a mortgage or a conditional sale, courts of equity incline to consider the transaction a mortgage as more benign in its operation. Poindexter v. M'Cannon, 1 Dev. Eq. 373. The test of the distinction is this if the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage; but if the debt be extinguished by the agreement of the parties, or the money advanced is

Property of every kind, real and personal, which is capable of sale, may become the subject of a mortgage; quod emptionem, venditionemque recipit, etiam pignorationem 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. (e)

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 *145 liable on these covenants even before entry; and the case of Eaton v. Jaques, (a) which had declared a contrary doctrine, after being repeatedly attacked, was at last entirely destroyed as an authority. (b) A mortgage is usually accompanied with a bond for the debt intended to be secured by it; 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. & M., the remedy by an action of covenant does not lie against a devisee. (c) 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

not by way of loan, and the grantor has the privilege of refunding, if he pleases, by a given time, and thereby entitle himself to a reconveyance, it is a conditional sale. Slee v. Manhattan Company, 1 Paige, 48; Goodman v. Grierson, 2 Ball & Beat. 274; Marshall, Ch. J., in Conway v. Alexander, 7 Cr. 237; Robinson v. Cropsey, 2 Edw. Ch. 138; Flagg v. Mann, 14 Pick. 467; 2 Sumner, 534; Holmes v. Grant, 8 Paige, 243; [See Alderson v. White, 2 De G. & J. 97; Brewster v. Baker, 20 Barb. 364; Locke v. Palmer, 26 Ala. 312; Murphy v. Barefield, 27 id. 634; West v. Hendrix, 28 id. 226; Hoopes v. Bailey, 28 Miss. 328; Davis v. Stonestreet, 4 Ind. 101; Lucketts v. Townsend, 3 Texas, 119; Brown v. Dewey, 2 Barb. 28; Baker v. Thrasher, 4 Denio, 493; Bethlehem v. Annis, 40 N. H. 34. See, as to a conveyance in trust, Bell v. Carter, 17 Beav. 11.] The court of equity never relieves the grantor who neglects to perform the condition on which the privilege of repurchasing depended. Davis v. Thomas, 1 Russ. & M. 506.

(e) Lord Eldon, in Carleton v. Leighton, 3 Meriv. 667.

(a) Doug. 438,

(b) 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. 1 Powell on Mort. 197, n. 1. By the New York Revised Statutes, i. 739, lands held adversely may be mortgaged, though they cannot be the subject of grant.

(c) Wilson v. Knubley, 7 East, 128.