Mason, J.,
delivered the following opinion:
The present appeal comes before us upon an agreed statement of facts, It appears that the appellant, Charles, sued out an attachment against John A. Grimes, as a non-resident debtor, and caused the same to be laid upon certain real estate in Washington county as the property of the said Grimes. [87]*87The appellee, to defeat said attachment, interposes a deed executed to him by the debtor, prior to the issuing of the attachment, and which was designed to embrace the same property. The single question submitted to us for adjudication is, whether this deed is embraced within the purview of the act of 1846, ch. 271, and its supplements? Those acts require that an affidavit shall be endorsed upon every deed of mortgage and bill of sale, to make them valid, by the mortgagee or grantee, that the consideration therein set out is true and bona fide. No such affidavit accompanies the present deed, and the inquiry then to which we are to address ourselves is, can this deed be sustained without such affidavit? The features of the deed which indicate its character, and which, it is contended, take it out of the operation of the statute, are as follows: Instead of conveying the property directly to the creditors, whose debt it was designed to secure, the deed interposes the appellee as trustee, to sell and convey the property in default of payment by the grantor; and provides further, that if the said Grimes shall pay the debt when due, then the trustee is to reconvey the property to him, discharged of the lien created by the deed; in other words, it contains the redemption clause.
It must be conceded, that but for the interposition of the trustee in this case, there could be no question as to the character of the deed. It would clearly be a simple mortgage, and as such, within the law.
It is a well established principle of law, in construing acts of Assembly, that the intention and meaning of the legislature are to be collected from the law itself, and the circumstances which produced it. Beall vs. Harwood, 2 Har. & Johns., 171. The design of the act of Assembly which we are now called upon to interpret, is obvious. Its purpose manifestly was, to prevent conveyances for pretended considerations in fraud of bona fide creditors, and there can be no doubt but that the deed before us comes within the mischief which the law intended to prevent. But it has been urged upon us, with great force and ability, by the appellee’s counsel, that inas[88]*88much as the legislature has used a technical term to convey its meaning, we must therefore-give to it a technical interpretation. In other words, the term mortgage has a special and limited meaning in the eye of the law, and we must therefore presume that the legislature intended to give to it that special and technical meaning, when it employed it in the act in question. To this doctrine I cannot assent as an universal rule, however well supported it may appear to be by argument and authority. In this connection I do not deem it necessary to review the nice distinctions drawn by counsel between mortgages and deeds of trust, or1 how far, if ever, they will be' treated as synonymous terms. This is a case sui generis, and must depend for its proper adjudication, more upon general principles of law and the rules of common sense,, than upon any adjudged cases. It is- our duty to reach the meaning of the legislature, and in doing so, if necessary, we must break through mere technicalities, and where the object of the statute is the suppression of a mischief, as in the present instance, the construction should be liberal, fully to effect the end if possible. Lucas vs. McBlair, 12 Gill and Johns., 17. And in- the case of Young vs. The State, 7 Gill and Johns., 260, the court uses this emphatic language: “Substance, and not form, is to control the construction of legislative enactments.” So liberal have- been our judicial constructions of acts of Assembly, in similar cases, that the court say, in the case of Patterson vs. Wilson, 6 Gill and Johns., 502, that “a case within the letter of a statute, and not within its spirit, is without the statute;” and there seems to be greater reason for-the truth of the converse of the proposition, viz., that a case not within the letter of a statute, and within its spirit, is within the statute.
The same principle is more fully recognised and enforced in a previous case, The State vs. Boyd, 2 Gill and Johns., 374. “Statutes are sometimes,” the court say, “extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter, it being an acknowledged rule in the construction of statutes, that the [89]*89intention of the makers ought to be regarded.” In that éase the learned chief justice permits himself, in imagination, to cite before him the members of a past legislature, and to interrogate them as to the purposes they had in view in passing a particular law. Cannot we do the same? If we could, would there be any doubt as to the response we would receive? Not a reason can be assigned why the law of 1846 should not extend to a deed like the present, as well as to a simple mortgage. In the case last cited, the Court add, ás a test whether a case is embraced within the meaning of a statute or not, that “if it is within the mischief intended to be remedied, there is no rule of construction which excludes it from the operation of the act.” Upon this dictum, according as it does with my own notions, I am willing to rest this case. If a creditor is required to swear to the consideration set out in a mortgage, when made directly to himself, why should he not do so when the conveyance is made to another for his benefit? If the prevention of fraudulent conveyances be the design of the law, as it clearly is, why should its operation be confined to one class of fraudulent conveyances, and not to another? Would not this court be conniving at an evasion of the law, by permitting debtors to commit indirectly the mischief which the legislature designed to prevent? See also Milburn vs. State, 1 Md. Rep., 17.
It is by no means my purpose to intimate that the instrument before us, would be regarded as a mortgage for every purpose — indeed it is not necessary even to say that it is a mortgage for any purpose. My design is merely to say, that in my opinion it is embraced within the meaning of the act, call it by whatever name you please. It is contended, that if this deed be a mortgage under the act of 1846, it must also be treated as one under the act of 1825, ch. 203, sec. 3, and subject to all the incidents of that law. This by no means follows. The legislature may have designed to have embraced such a case in one act, and to have excluded it from the operation of the other. But we are not called upon to interpret the act of 1825. It has no application to the point [90]*90involved iri the' pre'setit case. Nor is it necessary for the purposes of this question, to investigate the learning of the Courts upon the subject of the distinctions, incidents and peculiarities of deeds of trusts and m ortgages. We are called upon to construe an act of Assembly, and this must be done upon the broad principles of common sense and reason. Whether the legislature designed to embrace this deed in the terms of the law, is one question, the relative and conflicting rights of cestui que trusts,
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Mason, J.,
delivered the following opinion:
The present appeal comes before us upon an agreed statement of facts, It appears that the appellant, Charles, sued out an attachment against John A. Grimes, as a non-resident debtor, and caused the same to be laid upon certain real estate in Washington county as the property of the said Grimes. [87]*87The appellee, to defeat said attachment, interposes a deed executed to him by the debtor, prior to the issuing of the attachment, and which was designed to embrace the same property. The single question submitted to us for adjudication is, whether this deed is embraced within the purview of the act of 1846, ch. 271, and its supplements? Those acts require that an affidavit shall be endorsed upon every deed of mortgage and bill of sale, to make them valid, by the mortgagee or grantee, that the consideration therein set out is true and bona fide. No such affidavit accompanies the present deed, and the inquiry then to which we are to address ourselves is, can this deed be sustained without such affidavit? The features of the deed which indicate its character, and which, it is contended, take it out of the operation of the statute, are as follows: Instead of conveying the property directly to the creditors, whose debt it was designed to secure, the deed interposes the appellee as trustee, to sell and convey the property in default of payment by the grantor; and provides further, that if the said Grimes shall pay the debt when due, then the trustee is to reconvey the property to him, discharged of the lien created by the deed; in other words, it contains the redemption clause.
It must be conceded, that but for the interposition of the trustee in this case, there could be no question as to the character of the deed. It would clearly be a simple mortgage, and as such, within the law.
It is a well established principle of law, in construing acts of Assembly, that the intention and meaning of the legislature are to be collected from the law itself, and the circumstances which produced it. Beall vs. Harwood, 2 Har. & Johns., 171. The design of the act of Assembly which we are now called upon to interpret, is obvious. Its purpose manifestly was, to prevent conveyances for pretended considerations in fraud of bona fide creditors, and there can be no doubt but that the deed before us comes within the mischief which the law intended to prevent. But it has been urged upon us, with great force and ability, by the appellee’s counsel, that inas[88]*88much as the legislature has used a technical term to convey its meaning, we must therefore-give to it a technical interpretation. In other words, the term mortgage has a special and limited meaning in the eye of the law, and we must therefore presume that the legislature intended to give to it that special and technical meaning, when it employed it in the act in question. To this doctrine I cannot assent as an universal rule, however well supported it may appear to be by argument and authority. In this connection I do not deem it necessary to review the nice distinctions drawn by counsel between mortgages and deeds of trust, or1 how far, if ever, they will be' treated as synonymous terms. This is a case sui generis, and must depend for its proper adjudication, more upon general principles of law and the rules of common sense,, than upon any adjudged cases. It is- our duty to reach the meaning of the legislature, and in doing so, if necessary, we must break through mere technicalities, and where the object of the statute is the suppression of a mischief, as in the present instance, the construction should be liberal, fully to effect the end if possible. Lucas vs. McBlair, 12 Gill and Johns., 17. And in- the case of Young vs. The State, 7 Gill and Johns., 260, the court uses this emphatic language: “Substance, and not form, is to control the construction of legislative enactments.” So liberal have- been our judicial constructions of acts of Assembly, in similar cases, that the court say, in the case of Patterson vs. Wilson, 6 Gill and Johns., 502, that “a case within the letter of a statute, and not within its spirit, is without the statute;” and there seems to be greater reason for-the truth of the converse of the proposition, viz., that a case not within the letter of a statute, and within its spirit, is within the statute.
The same principle is more fully recognised and enforced in a previous case, The State vs. Boyd, 2 Gill and Johns., 374. “Statutes are sometimes,” the court say, “extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter, it being an acknowledged rule in the construction of statutes, that the [89]*89intention of the makers ought to be regarded.” In that éase the learned chief justice permits himself, in imagination, to cite before him the members of a past legislature, and to interrogate them as to the purposes they had in view in passing a particular law. Cannot we do the same? If we could, would there be any doubt as to the response we would receive? Not a reason can be assigned why the law of 1846 should not extend to a deed like the present, as well as to a simple mortgage. In the case last cited, the Court add, ás a test whether a case is embraced within the meaning of a statute or not, that “if it is within the mischief intended to be remedied, there is no rule of construction which excludes it from the operation of the act.” Upon this dictum, according as it does with my own notions, I am willing to rest this case. If a creditor is required to swear to the consideration set out in a mortgage, when made directly to himself, why should he not do so when the conveyance is made to another for his benefit? If the prevention of fraudulent conveyances be the design of the law, as it clearly is, why should its operation be confined to one class of fraudulent conveyances, and not to another? Would not this court be conniving at an evasion of the law, by permitting debtors to commit indirectly the mischief which the legislature designed to prevent? See also Milburn vs. State, 1 Md. Rep., 17.
It is by no means my purpose to intimate that the instrument before us, would be regarded as a mortgage for every purpose — indeed it is not necessary even to say that it is a mortgage for any purpose. My design is merely to say, that in my opinion it is embraced within the meaning of the act, call it by whatever name you please. It is contended, that if this deed be a mortgage under the act of 1846, it must also be treated as one under the act of 1825, ch. 203, sec. 3, and subject to all the incidents of that law. This by no means follows. The legislature may have designed to have embraced such a case in one act, and to have excluded it from the operation of the other. But we are not called upon to interpret the act of 1825. It has no application to the point [90]*90involved iri the' pre'setit case. Nor is it necessary for the purposes of this question, to investigate the learning of the Courts upon the subject of the distinctions, incidents and peculiarities of deeds of trusts and m ortgages. We are called upon to construe an act of Assembly, and this must be done upon the broad principles of common sense and reason. Whether the legislature designed to embrace this deed in the terms of the law, is one question, the relative and conflicting rights of cestui que trusts, mortgagees, creditors, and all other parties interested, are distinct questions.- We have to' settle the first and not the latter, and in determining the one, we need not necessarily pass upon the others. ít is to be remarked in this connection, that the words of the act are peculiar. The legislature has not said mortgages, but has used the expression “ deeds of mortgage,” which clearly, to my mind, repels the idea that the legislature intended to confine the law to cases of strict, technical mortgages, but designed to embrace all conveyances in the nature of a mortgage. If the present deed be not technically a mortgage, it may nevertheless be a deed, in the nature of a mortgage.
I am nevertheless constrained to admit, that there are questions arising out of this subject which are not free from difficulty. This difficulty, however, relates rather to the extent to which the principle is to be carried in its application to future cases, and by whom the affidavit in such cases is to be made. Though we are not required to decide more than the present appeal, yet I have no hesitation in saying, that I would not extend the principle which has been contended for, to general and absolute deeds of trust for the benefit of creditors, without the equity of redemption. In such cases the grantor parts, without any reservation, with all control over his property, until the purposes of the trust have been subserved. But whenever he retains in himself, by the terms of the deed, the power to defeat the conveyance by paying or satisfying the claims provided for, then such a deed is within the act. The distinction would seem to be, that in the latter case the debtor reserves to himself, where the transaction is fraudulent, [91]*91the power to defeat the conveyance, by producing a release from the pretended creditor, whenever it becomes necessary or safe for him to do so, and to get back his property, while in the case of an absolute conveyance he could not do so, even though there might have been a fraudulent compact between himself and the trustee for that purpose. The legislature has endeavored to provide for both these cases. The one by the act of 1846, which we are now considering, and the other by the act of 1845, ch. 166, which requires the trustee to give bond. And both of these acts might readily apply to the same.deed.
As an insuperable objection to the foregoing views, it has been asked whether the act of 1846 would be extended to a deed of trust for the benefit of a number of creditors, some of whom might be infants of tender years, and therefore not able to make the affidavit? If the grantor reserved to himself the equity of redemption, I have no doubt that it would. This is rather an argument showing the defects of the law, than one supporting a particular construction of it. And this is manifest from the fact, that the same argument would apply with equal force to a simple mortgage, to secure the debts of a number of individuals, among whom were infants. In that case the law would clearly apply, although the difficulty of making the affidavits would be equally as great.
It is contended, that unless all the creditors named in the deed respectively made the affidavit, the deed would be void as to those even who did. To this view neither, can I assent. The deed in such a case would be pro tanto, good as to those who made the affidavit, and void as to the others. 1 do not wish to be regarded as the apologist of this law. Its wisdom and policy are one question, while its construction is another. Our duty relates exclusively to the true construction of the act, and the argument, that it is against public policy and convenience, should have no weight in this court.
In conclusion, I will barely remark, that, in my opinion, all deeds like the present, in the nature of a mortgage, for the purpose of securing specific debts to particular creditors, [92]*92accompanied with what is always deemed a characteristic mark of a mortgage, the equity of redemption, must be verified by an affidavit,'to be made by the creditor whose debt is proyided for in the deed. Without such an affidavit, the deed would be unavailing.
For the foregoing reasons, jt is my .opiuion, that this judgment ought to be reversed.
Le Grand, C. J., was of opinion, that the particular’ instrument in this case required an affidavit, but did not file any reasons for the same.