[149]*149The opinion of the court was delivered by
Woodward, J.
The remedies of a mortgagee against his mortgagor, as existing at common law, and as modified in equity, may be stated briefly as follows :—
[150]*1501st. He had a right to take possession of the mortgaged premises, and to use and enjoy them as a prudent owner would do; but correlative to this was the right of the mortgagor, to compel him to account for the profits, and to restore the possession when the rents and profits of the estate had paid debt, interest, and charges.
2d. The right of foreclosure, whereby he acquired an absolute title to the encumbered property. This was by a bill in chancery, praying for the foreclosure of the mortgagor’s equity of redemption, on account of non-payment of the debt, according to the terms of the contract; but it was subject to many vexatious delays, arising not only from the difficulty of making all proper persons parties, such as heirs, devisees, and encumbrancers, but chiefly from the power that chancery assumed to enlarge the time for redemption on a bill to foreclose.
After final decree of foreclosure, the mortgagee might sell the estate, and according to some authorities, if he did this fairly, and it produced less than the mortgage-debt, he might still have [151]*151remedy against the mortgagor’s other estate for the balance of' the debt. To make sure of this result, the practice has prevailed in several states of the Union, and is not’ unknown in England, to make the bill for foreclosure conclude with a prayer for the sale of the premises, and such sales, when decreed and made, have all the effect of a strict foreclosure to extinguish the equity of redemption. The price is substituted for the pledged estate, and if it prove insufficient to pay the creditor in full, he may proceed on his bond against the mortgagor for the balance of his debt. This power of chancery to decree a sale instead of a foreclosure is now regulated by statute in England. See 15 & 16 Viet. c. 86, sec. 48.
3d. A third and very important right of the mortgagee is to sell the premises in pursuance of an express power given in the mortgage. This power is common in the English mortgage, but has been unknown in Pennsylvania mortgages; until within the last few years corporation mortgages have become a common mode of creating marketable securities for raising loans. It being a power annexed to the estate, and coupled with an interest, it is necessarily irrevocable. It becomes part of the mortgage security, and vests in any person who, by assignment or otherwise, becomes entitled to the money secured to be paid. It relieves the mortgagee of the troubles and delays which are liable to attend foreclosure by bill in equity. It is to be strictly pursued in all essential particular’s, and when it is, the sale that is made in pursuance of it, is virtually a foreclosure of the mortgagor’s equity of redemption ; for he created the power expressly to confer on the purchaser a perfect title to the whole estate, and thus to secure to himself the benefit of an outside price:
Such are the recognised legal remedies of mortgagees, where the common law and chancery jurisdictions have not been restrained and regulated by statute. But we have grown unfamiliar with them, chiefly because we have never had a distinct chancery tribunal, and because our old Act of 1705 prescribed an easy and satisfactory course for foreclosing the equity of redemption, and bringing the mortgaged estate to a fair public sale. But the scire facias given by that statute does not lie, until a year after the last instalment of the mortgage-debt falls due, and hence we have felt obliged to give liberal construction to the remedies of the creditor on his bond, for non-payment of interest and instalments of the principal debt.
It is manifest, however, that neither the remedy under the statute, nor under the bonds accompanying the mortgage, are adapted to the large securities which corporations are in the habit of creating for loans, which are to be negotiated in the money markets of the country. Borrowing companies postpone the payment of the principal debt much beyond the ordinary race of [152]*152debts. Their draft upon the future is seldom less than twenty-years, and if a capitalist were told, that his only remedy on such a mortgage would be the privilege of issuing a scire facias twenty-one years after date, he would not be very likely to give the corporation the use of his money.
Or, if he should be pointed to our judicial decisions, which enable a mortgagee to sue his bond for unpaid interest, and to sell the mortgage premises with the same effect as a sale upon scire facias under the statute, he would reflect that a great number of bonds similar to his were issued, or were to be issued; that they were broadcast over the land; that any one of the holders would have the same right as himself to proceed to sell the mortgage premises, and that before he could know of such a proceeding, his entire security might be swept beyond his reach. This view of his remedies would not be likely to prove much more satisfactory than the other.
The borrowing corporations understand this. They know money cannot be obtained on securities whose legal remedies are so remote, precarious, and unsatisfactory. They judge rightly, that a mortgage is a mere contract; and when devising a security to win public confidence, they remember that the more facilities it affords for redress of possible breaches, the more will it commend itself to public favour. Accordingly, instead of leaving their prospective creditors to the remedies of our common Pennsylvania mortgage, they always stipulate that the trustees shall have power to enter for breach of any condition, and exercise the corporate franchise for the benefit of creditors, or shall have power to sell the premises after due notice, or to declare the principal debt overdue, and to proceed by scire facias to foreclose the mortgage.
The mortgage before us is fashioned upon this model. It provides, that if the company shall fail to pay principal or interest of their debt, the trustees may take possession of the road, receive' the tolls, rents, issues, and profits, and after defraying necessary charges and expenses, apply the balance to the principal and interest of all bonds unpaid. Moreover, after the principal debt, of the bonds falls due, the trustees may, on request of bondholders, cause the premises to be sold at auction after specified notices.
This is a bill on behalf of one of the bond-holders to compel the trustees to sell under the mortgage. The plaintiff is admitted to be a lawful holder of one or more bonds secured by the mortgage, and the failure to pay interest since May 1854, and the insolvency of the company, are also admitted. No part of the principal debt is due, or will fall due, before the first of May 1872.
The breach complained of is non-payment of interest. The stipulated remedy for that is possession of the road and receipt of the profits. No power of sale is conferred for such a cause. [153]*153If it were, the trustees might execute it without our help, as we decided in the case of Ashhurst v. The Montour Iron Co.; if it were, we would compel the trustees to execute it upon a proper showing, hut as no such power is conferred by the instrument, the only question is, whether we can confer it.
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[149]*149The opinion of the court was delivered by
Woodward, J.
The remedies of a mortgagee against his mortgagor, as existing at common law, and as modified in equity, may be stated briefly as follows :—
[150]*1501st. He had a right to take possession of the mortgaged premises, and to use and enjoy them as a prudent owner would do; but correlative to this was the right of the mortgagor, to compel him to account for the profits, and to restore the possession when the rents and profits of the estate had paid debt, interest, and charges.
2d. The right of foreclosure, whereby he acquired an absolute title to the encumbered property. This was by a bill in chancery, praying for the foreclosure of the mortgagor’s equity of redemption, on account of non-payment of the debt, according to the terms of the contract; but it was subject to many vexatious delays, arising not only from the difficulty of making all proper persons parties, such as heirs, devisees, and encumbrancers, but chiefly from the power that chancery assumed to enlarge the time for redemption on a bill to foreclose.
After final decree of foreclosure, the mortgagee might sell the estate, and according to some authorities, if he did this fairly, and it produced less than the mortgage-debt, he might still have [151]*151remedy against the mortgagor’s other estate for the balance of' the debt. To make sure of this result, the practice has prevailed in several states of the Union, and is not’ unknown in England, to make the bill for foreclosure conclude with a prayer for the sale of the premises, and such sales, when decreed and made, have all the effect of a strict foreclosure to extinguish the equity of redemption. The price is substituted for the pledged estate, and if it prove insufficient to pay the creditor in full, he may proceed on his bond against the mortgagor for the balance of his debt. This power of chancery to decree a sale instead of a foreclosure is now regulated by statute in England. See 15 & 16 Viet. c. 86, sec. 48.
3d. A third and very important right of the mortgagee is to sell the premises in pursuance of an express power given in the mortgage. This power is common in the English mortgage, but has been unknown in Pennsylvania mortgages; until within the last few years corporation mortgages have become a common mode of creating marketable securities for raising loans. It being a power annexed to the estate, and coupled with an interest, it is necessarily irrevocable. It becomes part of the mortgage security, and vests in any person who, by assignment or otherwise, becomes entitled to the money secured to be paid. It relieves the mortgagee of the troubles and delays which are liable to attend foreclosure by bill in equity. It is to be strictly pursued in all essential particular’s, and when it is, the sale that is made in pursuance of it, is virtually a foreclosure of the mortgagor’s equity of redemption ; for he created the power expressly to confer on the purchaser a perfect title to the whole estate, and thus to secure to himself the benefit of an outside price:
Such are the recognised legal remedies of mortgagees, where the common law and chancery jurisdictions have not been restrained and regulated by statute. But we have grown unfamiliar with them, chiefly because we have never had a distinct chancery tribunal, and because our old Act of 1705 prescribed an easy and satisfactory course for foreclosing the equity of redemption, and bringing the mortgaged estate to a fair public sale. But the scire facias given by that statute does not lie, until a year after the last instalment of the mortgage-debt falls due, and hence we have felt obliged to give liberal construction to the remedies of the creditor on his bond, for non-payment of interest and instalments of the principal debt.
It is manifest, however, that neither the remedy under the statute, nor under the bonds accompanying the mortgage, are adapted to the large securities which corporations are in the habit of creating for loans, which are to be negotiated in the money markets of the country. Borrowing companies postpone the payment of the principal debt much beyond the ordinary race of [152]*152debts. Their draft upon the future is seldom less than twenty-years, and if a capitalist were told, that his only remedy on such a mortgage would be the privilege of issuing a scire facias twenty-one years after date, he would not be very likely to give the corporation the use of his money.
Or, if he should be pointed to our judicial decisions, which enable a mortgagee to sue his bond for unpaid interest, and to sell the mortgage premises with the same effect as a sale upon scire facias under the statute, he would reflect that a great number of bonds similar to his were issued, or were to be issued; that they were broadcast over the land; that any one of the holders would have the same right as himself to proceed to sell the mortgage premises, and that before he could know of such a proceeding, his entire security might be swept beyond his reach. This view of his remedies would not be likely to prove much more satisfactory than the other.
The borrowing corporations understand this. They know money cannot be obtained on securities whose legal remedies are so remote, precarious, and unsatisfactory. They judge rightly, that a mortgage is a mere contract; and when devising a security to win public confidence, they remember that the more facilities it affords for redress of possible breaches, the more will it commend itself to public favour. Accordingly, instead of leaving their prospective creditors to the remedies of our common Pennsylvania mortgage, they always stipulate that the trustees shall have power to enter for breach of any condition, and exercise the corporate franchise for the benefit of creditors, or shall have power to sell the premises after due notice, or to declare the principal debt overdue, and to proceed by scire facias to foreclose the mortgage.
The mortgage before us is fashioned upon this model. It provides, that if the company shall fail to pay principal or interest of their debt, the trustees may take possession of the road, receive' the tolls, rents, issues, and profits, and after defraying necessary charges and expenses, apply the balance to the principal and interest of all bonds unpaid. Moreover, after the principal debt, of the bonds falls due, the trustees may, on request of bondholders, cause the premises to be sold at auction after specified notices.
This is a bill on behalf of one of the bond-holders to compel the trustees to sell under the mortgage. The plaintiff is admitted to be a lawful holder of one or more bonds secured by the mortgage, and the failure to pay interest since May 1854, and the insolvency of the company, are also admitted. No part of the principal debt is due, or will fall due, before the first of May 1872.
The breach complained of is non-payment of interest. The stipulated remedy for that is possession of the road and receipt of the profits. No power of sale is conferred for such a cause. [153]*153If it were, the trustees might execute it without our help, as we decided in the case of Ashhurst v. The Montour Iron Co.; if it were, we would compel the trustees to execute it upon a proper showing, hut as no such power is conferred by the instrument, the only question is, whether we can confer it. The parties have made their contract in their own way — have anticipated the very contingency which has happened, and have provided for it by a remedy which was deemed adequate and fair. Now, it is our appropriate duty, to hold them to their bargain, but it is not our duty, nor have we power to interpolate a new condition, and to say what they did not say, that a sale shall take place because interest is not paid.
If we possess any such power, it must be found in the Acts of Assembly enlarging our chancery powers, but it was shown in the Montour case, that no power to decree a sale for breach of mortgage conditions had been conferred upon us by that legislation. This mortgage, like all of its sort, establishes the double relation of mortgagor and mortgagee, and of trustee and cestui que trust. We declined, in the Montour case, to exercise jurisdiction at the suit of the mortgagee against the mortgagor, because, as between them, there was no trust, and over them, as mortgagor and mortgagee, the legislature had given us no chancery jurisdiction. But we said, we would take jurisdiction at the suit of a cestui que trust, to compel the trustee to execute the trusts of the mortgage. We repeat it here. Jurisdiction of the trusts of the mortgage is clearly conferred by the Acts of Assembly, and it is to be exercised in proper cases, by holding the trustees to the faithful discharge of the powers which have been lodged with them for the benefit of the creditors. It is not an inherent and essential power of this court, to be exercised according to an undefined discretion, but is a statutory power, to be exercised in aid of the express purposes and objects of the contract of the parties.
On this subject of the equity jurisdiction of this court, I take leave to add a few words, not necessary, perhaps, to the decision of the case before us, but essential to correct misapprehensions of the professional mind. Certain equity powers have always been exercised under the common law forms that have prevailed in our courts, and certain other specific equity powers were long since conferred by the constitution, the Orphans’ Court statutes and other legislation, to be exercised by common law judges, but in the forms of equity proceedings. In 1836, more of this class of powers were conferred, and subsequent grants have enlarged them, until we have come to possess nearly all the jurisdictions which courts of chancery exercise under the principal heads of equity. These grants did not, however, embrace the subject of-mortgages, as was shown in the case of Ashhurst v. Montour Co. The codifiers were not ignorant that bills in chancery for fore[154]*154closure and sale of the equities of redemption of mortgagors were common in England and the surrounding states, but they did not deem it best to recommend such an equity practice in Pennsylvania, and it was not done. Eor my own part, I have never considered it wise, or according to the traditions of our fathers, to amplify our equity jurisdiction by judicial construction. What is plainly conferred, must be exercised — what is not, is best let alone. Accordingly, when the case of Mendenhall v. The West Chester Railroad Co. came into this court, I stood, with Judge Knox, opposed to the decreeing a sale. If the opinions of my excellent brethren (that of Judge Lowrie, at Nisi Prius, and of Judge Lewis, in banc) had at any time the sanction of a majority of the bench, it is still true, that before the case was finally disposed of, a re-argument was ordered, and before that was had the case was settled. Those opinions, therefore, whilst entitled to great consideration, can-scarcely be regarded as authoritative decisions, even of that case. Neither of them attempt to deduce the power of this court to decree a sale of mortgage premises, from the Acts of Assembly, but they go upon the general equity doctrine, and assume that' we have all the powers of courts of equity elsewhere. I could not assent to that assumption. But there was another difficulty in my mind. The mortgage there contained no power to sell for breach of condition in not paying interest; the power of sale being dependent, in that case as in this, on the non-payment of the bonds; but there was there, as here, a stipulation that for default of payment of principal or interest, the trustees should have power to enter and take possession of the road, and work it for the benefit of creditors.
It seemed to me, that parties who had thus plainly defined their relations, rights, and liabilities, Ought to be held to the remedy they had agreed on for the breach which had occurred. I was disposed to hold them to their bargain in every particular. I would have assisted the trustees to the possession; at the suit of a creditor, I would have compelled them to assume the possession, or resign their trust; but neither in the instrument itself, nor in the Acts of Assembly that measure out our chancery powers, could I find our right to decree a sale.
The difficulties which were felt by two judges in that case are shared by a majority now, and therefore a sale is not to be decreed in this case.
It is material to observe that, in all cases where a sale is decreed in pursuance of a power contained in the mortgage, it results from that power rather than from the equity powers of this court. We compel trustees, in proper cases, to exercise the power lodged with them by the mortgagor, but the power exercised is the mortgagor’s, not ours.
With this distinction borne in mind, it will be readily understood [155]*155how, whilst disclaiming the general chancery jurisdiction to decree a foreclosure or sale of the equity of redemption, we nevertheless take jurisdiction of the trusts created in the mortgage, and compel trustees to execute whatever powers have been'vested in them for the benefit of creditors, even to a sale of the mortgage premises.
The sum of the whole matter is — 1st. That we recognise a power of sale for breach of any condition of a mortgage as a legitimate part of the instrument, and it is to be executed according to the terms of the appointment.
2d. If the mortgage create a trust, and provide that the power of sale is to be executed by the trustee in certain contingencies, he may be controlled, restrained, and directed by a court of equity at the suit of a party standing in the relation of a cestui que trust, the rule for his guidance being derived from the instrument itself.
3d. But where there is no trust to be administered as the immediate object of the suit, or the contingency has not happened which was to bring it into exercise, courts of equity have no jurisdiction in Pennsylvania over mortgages: mortgagees are left to their common law and statutory remedies.
As these views result in an affirmance of the decree dismissing the plaintiff’s bill, it is not necessary to consider the other grounds urged.
The decree is affirmed.