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Rands and wife v. Kendall.

Dec. Term

efits, at another freeing him from all the burdens necessarily In Bank. flowing from a full title.

. 1846. “ The seizin, if in the mortgagor before the mortgage was • executed, must remain in him, or be transferred to the mort*gagee. It must be found somewhere. Is it in the mortgagee?

Originally mortgages were feoffments, conveyances of land • from debtor to creditor, with condition that if the money was not paid at the day appointed, the lands became absolutely vested in the creditor freed from the condition. Lit. sec. 332. · The strictest maxims of the common law respecting condi* tions, were applied to them. Even a subsequent tender of

the money did not avail the debtor: he lost the land, no matter how high its value, or how small the sum which it was designed to secure. 5 Rep. 95, 114.

“ This was so obviously unjust, that courts of equity inter"fered, and courts of common law have aided in the establishment of different doctrines. Since the reign of James I. the

right of redemption has been fixed so that the mortgagee can . in no way invade it, even by incorporating an agreement in

the deed itself. 1 Ver. 33, 190, 138, 488; 2 Rep in Ch. 221; • 2 Ver. 520. Since that time, the mortgagee has had no cer"tain and absolute estate in the land until after foreclosure, and

that is the creation of a new title, not the confirmation of an old one. 1 Atk. 603. Even if he recovers the possession by

entry, or by suit, he holds not for himself by title ; he must · account to the last farthing for the profits, and his possession may be at any moment, at the will of the mortgagor, terminated. 1 Vern. 476, 45; 2 Atk. 534. He cannot use it as

his own: he will not be permitted to do waste. Cro. Jac. 172; 63 Atk. 728. He cannot sell or lease so as to bind the mort

gagor. 9 Mod. 1. He could not even bar him by fine or • recovery, when they were in use. His estate is not at any • time considered as real, but personal. 2 Ver. 401. It is a mere security, a mere charge on the land, and whatever

gives the money gives all the estate he has for every purpose. 62 Burr 969.

Rands and wife v. Kendall. In Bank. “These doctrines, though principally established in equity, c. Term, o operate completely at common law. A mortgagee is there 1846.

considered as a freeholder for no single purpose of office, of benefit, or of burden. He can hold no public office, he can exercise no public duty requiring an estate in lands. He cannot gain a settlement: his property is personal assets in settling his estate, if he devises it: it will not pass by the word land or real estate, nor is it necessary that his will be executed « with the legal requisites to pass them. It is not subject to

courtesy or dower, the necessary attendants upon legal estates in lands. Even a transfer of the debt in any way terminates it. 2 Burr 969. It has not one single characteristic of a • legal estate. It is a mere security for the money, and a power

to gain possession of the land in order to make it. Reeves • D. R. 53. Shall we then say that the seizin is in the mort*gagee? Because it was of old so determined, when all legal

consequences of an estate followed it, shall we so determine when not one legal consequence follows ? For the sake of an 6 adherence to an old doctrine, shall we break down every legal

reason, doctrine and distinction?' I cannot doubt on this • point.

“But again, - estates at common law. pass by livery of seizin, or what is equivalent thereto, and, when passed, can be restored to the grantor only by an act of equal validity. If,

then, the execution of the mortgage transfers the estate, it can "be restored only by some legal conveyance. This is the ne

cessary common law doctrine, and was adjudged and acted • upon while the estate was considered as transferred to the

mortgagee; Cro. Car. 190. But the mere payment of the . money — the discharge of the bond in any mode is now

said to re-invest the estate. Is there any principle for this, or any other instance in which it was ever heard that a legal estate in lands could be passed by the mere payment of a sum of money, without livery and without deed? Yet such is here the doctrine.

Rands and wife v. Kendall.

1846.

“ Again, according to the well established rule of this day, a In Bank.

| Dec. Term wife cannot have dower in the estate or interest of the mort- ' gagee. If, therefore, dower be not given in the estate of the mortgagor, all lands mortgaged before marriage are free from this claim. This is, then, a most easy contrivance to relieve all lands from dower, and it is time for us to expunge the assertion that dower is favored in the law. We not only suffer "it to be easily defeated, but we do not even give it the advant( age of courtesy, a right surely not founded in equal reason.

“It appears to me that there is no way of extricating ourselves from innumerable absurdities, but by deciding that the interest of the mortgagee is a mere incumbrance or security, and that the legal estate remains in the mortgagor; and if so, the consequence follows that the widow is entitled to her dower.

“And is it not proper, according to the nature of the claim, and the analogy in other cases, that this should be so ? I think it is. The right to dower is acknowledged, on all hands, to be one founded on high legal, equitable and moral considerations, and ought not lightly to be evaded.” ..

Where the mortgage is held to be a lien at law as well as in equity — where it is held that a reconveyance by the mortgagee is unnecessary, and that he may transfer his interest otherwise than by deed, then it is held that the mortgagor is seized of an estate of inheritance, both before and after condition broken, and that his widow is entitled to dower, subject to the payment of the mortgage debt. As, however, the mortgagee has the legal right to the possession until he is satisfied, the doweress cannot disturb him if he be in possession, but must first redeem the mortgage. A conveyance by the mortgagor, without his wife's concurrence, will not affect her right, and it is immaterial whether the conveyance be to a stranger or to the mortgagee himself. If the mortgagee be in possession under his mortgage, an action at law for dower cannot be maintained, simply because the mortgagee has the legal right to the possession, and the remedy of the doweress is a bill to redeem. After the re

Rands and wife o. Kendall.

Dec. 1

1846.

In Bank. demption, a court of equity will apportion the debt between the

", doweress and the heir. , If the latter, or the husband's grantee

be in possession, the bill is filed for dower, and not for redemption, and the mortgage debt is fairly apportioned. These vari. ous propositions are established by the following additional authorities, cited in argument: Coles v. Coles, 15 Johns. Rep. 319; Collins v. Torry, 7 Johns. Rep. 232; Harrison v. Eldridge, 2 Halst. Rep. 392; Barker v. Parker, 17 Mass. Rep. 564; Gibson v. Crehore, 5 Pick. Rep. 147; Van Dyne v. Thayre, 14 Wend. Rep. 230; Cooper v. Jhitney, 3 Hill's Rep. 96; Smith v. Eustace, 7 Greenl. Rep. 41; Bell v. Mayor of New York, 10 Paige's Rep. 54, 63; 19 Wend. Rep. 162; 4 Kent's Com. 44, 46, 47, 66, 195; 7 Greenl. Rep. 102; 7 Met. Rep. 157; 5 Johns. Ch. Rep. 482.

There is no good reason why a court of law should not construe a mortgage deed to mean what a court of equity declares it to mean, and what every body understands it to mean, that is, a mere security for a debt.

It is said the mortgagee must be the freeholder, because he can eject his debtor. Now the plaintiff in ejectment recovers upon a possessory right or title to the possession, and it is conceded that the mortgagee is entitled to the possession; See 2 Cruise's Dig. 105, note by American Editor. A pledgee of chattels may maintain an action of detinue, but it does not follow that he is the real owner, in legal contemplation. He is not so regarded; Story on Bailment, sec. 307. If I pledge my house with my creditor to secure a debt, I remain the owner notwithstanding he have both the possession and the right to the possession united. Nor does the bill in equity to foreclose a mortgage of lands or a pledge of chattels proceed upon the assumption that the debtor has only an equitable right; on the contrary, the Court act upon the legal right to redeem and compel its exercise within a reasonable time on penalty of foreclosure. A majority of the Court say that Adbeel Coleman, after the condition broken, had but an equity which he could transfer by his own deed. If he had but an equity, he

Rands and wife v. Kendall.

1816.

could transfer it without a deed, and so could his assignee, and In Bank.

but Dec. Term, as the mortgagee could also transfer all his interest without a' deed, the whole fee simple and inheritance might be conveyed, from time to time, without a deed, in defiance of the statute regulating the transfer of land. This is only one of the numerous absurdities flowing from the proposition that the mortgagee is the freeholder, and, yet, that he may transfer all his interest by a mere assignment of the debt. It is worthy of remark, that the assignment of the mortgage from Ferguson to Wright was not by deed, but by mere memorandum on the mortgage. No sufficient reason can be assigned for a departure from the rule hitherto established, in this State, that the mortgagee does not hold a fee simple estate of inheritance.

The rule is now abandoned for the sake of destroying the 'right to dower, which is acknowledged to be a right founded on high legal, equitable and moral considerations. Besides which, the breach of the rule destroys the symmetry of the whole structure of our law, and lets in inextricable confusion where order reigned before..

It is contended by defendants' counsel, that a conveyance by the mortgagor ought to bar dower, because a foreclosure of the mortgage would have that effect. But it might as well be said that a conveyance by a judgment debtor would bar dower, because a judicial sale under a judgment rendered before marriage would have the same effect. The simple question is, at Jast, whether the legal estate of inheritance is in the mortgagee? It is not in him, as we have seen, and, therefore, the mortgagor’s conveyance cannot bar her dower; nor will the conveyance of the sheriff, under a judgment rendered during the coverture, because the sheriff can only convey what the debtor could convey himself. 2 Halstead, 392.

There is a discrepancy in the opinion of a majority of the Court itself, which is quite remarkable. It affirms that the mortgagor is seized against the whole world except the mortgagee or his grantee. And yet we find that Coleman did not convey to the mortgagee nor his grantee, but to one having a

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