[481]*481By the Court,
Cowen, J.
Mr. Maxwell’s deposition was clearly admissible, as well to show that the company were properly made defendants, as for other purposes of the cause. It proved that the defendants claimed title to-the premises in question. No doubt was raised that the president had power to speak in reply to the tender. The reason assigned by him for refusing to accept the money was, that the defendants had made a contract to sell. This implied a legal right in the company. It was in effect “ claiming title or interest,” within the terms of 2 R. S. 230, § 4, 2d ed. It is supposed, that in order to give efficacy to such claim, the plaintiff should have first shown that the premises were unoccupied. To this there are two answers : A claim is one material item of evidence to establish possession at the common law. Non constat, as yet, that the plaintiff might not proceed to show actual occupation by the defendants ; in which case, it would be material to see by their declarations whether they were in as mere workmen, perhaps daily servants under another, or as claiming to own the premises. Doe ex dem. Stansbury v. Arkwright, 5 Carr. &. Payne, 575. The same section, 4 of the statute, speaks of the exercise of acts of ownership, as of itself subjecting the party to an ejectment. Beside, if it were material to show that the premises were vacant, according to the order which seems to be contemplated by this section, the question was but upon the priority of evidence; and however the requisite preliminary fact might have been wanting at the stage when the objection was raised, it was supplied by the defendants themselves afterwards proving that such of the premises as the verdict finally covered, were in truth vacant at the time when the claim was interposed. It is well settled, that an objection, technically correct at the time, may be rendered pointless by testimony afterwards coming from the objector, or, in many cases, even from the party against whom the exception is taken. Murray v. Judah, 6 Cowen, 484, 490. Norris v. Badger, id. 449, 455. Jackson, ex dem. Hills, v. Tuttle, 7 id. 364, and the note to the latter case, p. 365. The judge was therefore right in refusing to nonsuit the plaintiff on the question of possession. [482]*482Whether the case was afterwards varied in this réspéct by the contract with the Merritts, and their acts of ownership,- is another question. I will only observe, for the present, that if the defendants were to be viewed previous to the tender, as I think we shall see they must be with regard to the plaintiff, in the light of legal owners, their interposing claim of interest, as owners, qualified with the mere general, declaration that they had contracted to convey to another, the-premises being at the same time unoccupied, and it not appearing that the'plaintiff was apprised of the circumstances afterwards given in evidence,- which might have worked a change of possession as between the defendants add the Mer ritts, the judge was by no means wrong in finally charging the jury that -the defendants were properly made parties. The circumstances of the premises 'being vacant, a claim of title or some interest "would of themselves» make, the defendants proper parties. 2 R. S. 230, § 4, 2d ed. And after admitting themselves to be proper parties within the statute, the defendants shall not be heard to question the acts or declarations, which in all probability led to the service of the declaration upon them; without at least showing that they had before set the plaintiff right in all those particulars which might' instruct him as to the propriety of pursuing other parties. Hall v. White, 3 Carr. & P. 136. I admit that the stipulation with the Mertitts to give them possession, and their acts" of ownership which followed, would have' made them proper parties in ejectment at the suit of these defendants, and might have warranted the plaintiff 's election to sue either. See Cook v. Rider, 16 Pick. 186, and Cooper v. Smith, 9 Serg. & Rawle, 26. , A resort to the Merritts, however, was matter, of election.. It would not have con-» eluded the defendants, the former legal proprietors, and still claiming to hold that position, unless the Merritts had compelled them by notice to.assume their defence. The present action has the advantage of, covering and contesting the whole interest in the land with persons who are in this respect, at least, more properly made parties. On the whole, therefore,-1 think there is-no technical impediment" to an. examination of the legal title of these parties.
[483]*483As between the plaintiff and the defendants, the latter clearly became the legal owners of the premises in question by the purchase of their agent, Tibbits, at the master’s sale, although he took the conveyance in his own name. However that might, as it did, with the circumstance of Tibbits’ death, produce delay and embarrassment in conveying to the company’s vendees, the company can never cut off the right of their mortgagors to redeem within the terms of this charter, by putting forward their agent as the nominal purchaser. To allow such a consequence, would place it in their power to defeat at their pleasure the purposes of a very material enactment. No one of the parties concerned ever thought that Tibbits acquired any real interest even in respect to the company, which is taking the strongest view. The latter having consented to his name being put into th.e deed as grantee, must abide the effect of its working a technically legal estate in their trustee thus chosen. But it does not look well to make a point that they could by such a manoeuvre deprive the plaintiff of his chartered and stipulated right to redeem ; at all events, it would be to fix an extremely bad construction on a statute, were we to say that the party against whom it was intended to operate might evade and defraud it by the adoption of a mere formula.
/ Then what were the plaintiff’s rights as declared by this charter ? I answer, that he had a legal statute right to redeem, so long as the property remained in the defendant’s hands unsold ; and this notwithstanding the decree of foreclosure. I will put it that the defendants had made a legal and valid stipulation in their mortgage that the plaintiff might- so redeem; for the charter shall be read as a part of their mortgage. What would have been the consequence of actual redemption by payment? The counsel for the defendants concede that it would nullify a mortgage in all cases, and both the mortgage and decree in this case, thus revesting the legal title in the mortgagor. And see 1 Powell on Mortgages, 109 to 110, Rand’s ed. 1828, and the notes there.
But it is strenuously insisted that a tender and refusal shall not ever touch the lien; and this is put, first, upon the general [484]*484law in respect to redemption, which I hardly think should be allowed to .affect the case at bar. But suppose it to bear upon the question, what is the effect of a tender and refusal under that law ? This is said to depend on the time when the tender is made. If at the precise day expressed in the' mortgage for payment, it is agreed that the lien is thus removed, and that the mortgagor may'oust the. mortgagee by ejectment, if he be in possession. Co. Litt, 205, a. 1 Powell on Mortgages, Rand’s ed. 1828, p. 5, 6. But it is added that a tender after the day has no effect, either at law¡ or in equity, unless it be to save the costs of the latter court when the mortgagor comes with his redemption' bill. The argument insists that against the tender we should set up the an- ' cient rigor of the law, by confining it to the day stipulated; that for this purpose, the estate has become absolute-; and many cases aré cited to show that the ancient strictness- has not been relaxed as between the mortgage¿ and mortgagee, or those standing in their place, -That the mortgagee is still,' independent of our present statute, 2 R. S. 236, § 57,2d ed. ¡to be considered the absolute owner at law after default of payment, may be admitted. Jackspn, - px dem. Minkler, v. Minkler, 10 Johns. R. 480. Jackson, ex dem. The People v. Pierce, id. 414. Smith v. Shuler, 12 Serg. & Rawle, 240. Simpson's lessee v. Ammons, 1 Binney, 175. But why is that so l It is -but to afford an additional remedy for nonpayment of the money. Per Woodworth, J;, 18 Johns. R. 114. -This is in furtherance of the primary object. It enables the mortgagee, by a short process of law, to take into his own hand, .and withhold-the security from the waste of a desperate mortgagor. It is a measure of safety which son many times-be'compassed in no other way: .certainly not by the dilatory and expensive course of a bill and in-, junction -in equity, to which, with us, a mortgagee out of possession is now confined. By the statute, 7 Geo. 2, ph. 20, a court .of law might discharge an ejectment brought by the mortgagee, on the money due being brought into court; and in one of the first cases moved under this act, Anon.', 1 Strange, 413, Denton of counsel, who made the motion, said that the same thing was done often in the common [485]*485ideas. The motion was made at Hillary term, 7 Geo. 2; and the practice referred to had probably prevailed even, before the passing of the act. Indeed that this is so, and ■that the strict right is maintained by a mere fiction, to •coerce payment, would seem to be implied from the well settled notion that a release or payment of the money saves the estate, and bars an action of ejectment as well as debt •on the collateral bond.. Richards v. Syms, Barnardist. Ch. Rep. 90. Per Platt, J. in Jackson, ex dem. Randall, v. Davis, 18 Johns. R. 7, 12. Runyan v. Mersereau, 11 id. 534. Jackson, ex dem. Bowers, v. Crafts, 18 id. 110. Green v. Hart, 1 id. 590, per Spencer, J. Jackson, ex dem. Norton, v. Willard, 4 id. 42, 43, per Kent, Ch. J. Peltz v. Clarke, 5 Peters, 481, 483, and see Jackson, ex dem. Ireland, v. Hull, 10 Johns. R. 481. Incident to the remedy for enforcing payment, the mortgagee shall be so deemed to have the fee, as to avoid junior incumbrances and transfers made by the mortgagor, whether conventional or by operation of law, as well as for the purpose of a conventional foreclosure by a release to him of the equity of redemption. The latter has been held to operate by way of merging the mortgagor’s equity in the mortgagee’s legal estate, so as to cut off, or at least qualify a right of dower in the former. Van Dyne v. Thayre, 19 Wendell, 162, and the cases there cited.
'That the mortgagee shall be deemed owner for ,any other purpose, could not be said in this state, at least after the case of Runyan v. Mersereau, which held that trespass lay by the mortgagor against the mortgagee, for •an entry and cutting timber upon the mortgaged premises, though after default of payment. It is not necessary to go into the cases which consider the relation of the mortgagor to others. It is presented in its various aspects by the cases cited and remarks of the counsel and court in Runyan v. Mersereau, and again by Savage, Ch. J. in Astor v. Hoyt, 5 Wendell, 615, 616. See also Wilson v. Troup, 2 Cowen, 230, 231, per Sutherland, J. and the cases there cited by him. Beside, if the mortgagee is the owner, how can the payment or forgiving of the debt, transfer the freehold from him to the mortgagor? Kent, Ch. J. in Waters v. Stewart, [486]*4861 Caines’ Cas. in Er. 69; and cases before cited. That was the difficulty in Richardson v. Syms, where the debt was forgiven. It is supposed that what Lord. Hardwicke said in that case) of the rule at law, related to .a payment at the day. But it was not pretended on the argument here; that the doctrine now stands narrowed to that; and yet if the estate be absolute in the mortgagee, how non payment defeat the title? It cannot .operate as a conveyance, even though the parties should, agree expressly, that what is now loudly called the legal estate, should pass. If the mortgagee’s- right be an estate in land, the statute of frauds says it shall not- pass without writing. Here must then be something else than a transfer of the legal fee. What is it? Lord. Hardwicke answers. in Barnardjston', 93. , He 'says, the right of the mortgagee is not to be considered an estate' inland. His words are; “Where a mortgage is made of .-an estate,-that is only considered as .a security for money ■due. The land is the accident attending upon the other; •and when the,debt is discharged, the interest in the land follows of course. In law, the interest in the land is thereby defeated, and in equity a trust arises for the benefit of the mortgagor. In -ejectment, where "the title is made under a mortgage, if evidence is given that -the debt is satisfied, this is considered as defeating the estate in the land which the mortgagee hadand, (he adds,) “ especially where the mortgage is ancient, the court will -presume that-the money was paid' at the day.” He does not say that' if it appear to be paid afterwards in fact, this would -differ the result ; but only puts presumption of payment .-at the day as an emphatic ease, a mode of defeating the title, even -within the most strict notion of the law. He proceeds; “No writing is in thebe cases necessary, which shows that' even the law considers the debt as the principal, and the land to be ■only an accident.” The payment, then, according to Lord Hardwicke, operates, by way of defeasance ; -and that, too, a payment after -the law day ■; not because, as was supposed at. the bar, the parties come together and agree that it sh,all have that effect for the sake of divesting the supposed legal fee. That would be evading the statute of frauds. It [487]*487would be conveying an estate in fee under another name agreed by the parties. , A. cannot by paroi sell his farm to-B., by the manoeuvre of declaring, that his title is subject to a defeasance, even though B. should agree to it. 4 No, The title to real property cannot be divested by a mere payment of money, except where the law itself has first raised the fight of defeasance. It does so, according to all the modern cases. It overrides the exact law day, and gives thé mortgagor the same right to pay at any time after,until foreclosure, as he had at the day, subject to the addition ,of costs, if an ejectment or a suit in equity be brought before the payment. It must be admitted that, by .this doctrine, nearly all the essential characteristics of the ancient mortgage are subverted; that it indeed ceases to be a mortgage, except for the purposes, we have mentioned ; and now, since the revised statutes, even ejectment is denied. The mortgagee can only retain actual possession till payment, per Savage, Ch. J. in Jackson, ex dem Titus, v. Myers, 11 Wendell, 538, Van Dyne v. Thayre, 14 id. 233, provided he has been voluntarily let into possession. Van Dyne v. Thayre, 19 Wendell, 162, and the cases there cited. It has ceased to be the vadium mortuum, dead pledge or mortgage. Decisions at law as well as in equity, have long viewed it in the light of a mere pledge of property, redeemable at any timé previous to a judicial foreclosure. They "have proceeded in the spirit of the civil law, which disabled the borrower to contract for the absolute forfeiture of the property pledged, on condition that the money should not be paid at the day, for fear that eftiel creditors should take advantage of the necessity of poor debtors. Wood’s Civil Law, 184. Browne’s Civil Law, "203. The law day is postponed. The clause which fixes it is, in effect, stricken out of the mortgage. The cases in respect to mortgages of personal property were cited to us ; Brown v. Bement, 8 Johns. R. 96 ; Ackley v. Finch, 7 Cowen, 290; Langdon v. Buel, 9 Wendell, 80; Ferguson v. Lee, id. 258 ; Patchen v. Pierce, 12 Wendell, 61; but they.lié under a different rule. I have been unable in going over the eases to avoid the conclusion, a priori, that the mortgagor of the real property [488]*488has the same right to pay after, as at the law day, subject to the qualifications I have mentioned. He may, therefore, tender the" money;' and I cannot see why this shall-not be followed by the same consequence as if it had been tendered at the express day, viz. the saving of the estate. “ In all cases,” says ..Lord Coke, “ of a condition for payment of certain sum in gross, touching lands or tenements, if lawful tender be once refused, he which ought to tender the money is of this quit, and fully discharged forever afterwards.” Co. Litt. 208. Litt. § 338, Coke adds; p. 209, 6> “ If A. (the mortgagor) tender the money to B., (the mortgagee,) and he refuseth it, A, may enter into-the land, and the land is freed forever ‘of the- condition ; but yet the debt remained! ’; and may . be recovered by action of debt,” That the right of tender and the same consequence of refusal, extend beyond the law day, was expressly held by .this court in Jackson,.ex dem. Bowers, v. Crafts, 18 Johns, R. 11-0. Such a tender and refusal, were there received as so far equivalent to payment, that they raised the lien, and barred an ejectment. This clecision has several times since been recognized as law, at least by Chief Justice Savage. Astor v. Hoyt, 5 Wendell, 617. Jackson, ex dem. Titus, v. Myers, 11 id. 538: The reason is the same, whether the tender- be made at or after the day. It is - in both cases, equally the folly of the mortgagee to refuse. See 18 Johns., R. 115, and books there cited.
" I certainly might have contented myself' with merely citing Jackson v. Crafts, as forming the law of this court, had. not that decision been questioned by the present chancellor in the late case of Merritts v. Lambert, M. S. which was that of - a bill drawing this very title in question. The chancellor held that the tender by the present plaintiff did not divest the legal right of the company. . He may indeed be correct, in his remark, that the books cited by Mr. Justice Woodworth, who delivered the opinion in Jackson v. Crafts,’ would- not of themselves warrant the conclusion to which that case came. They relate to raising the lien by á tender, at the day, taking for granted what, with reference to the learned-chancellor, I think must follow from.the [489]*489almost unbroken current of modern cases, especially in this state, that the law day is not now what it formerly was, but is extended to all time intermediate the date of the mortgage and foreclosure. He adds that even actual payment after the law day would not relieve the estate at common law, though he admits it will do so now. He does not enter into the reason for the distinction, and I have sought in vain for any, except that the law day is adjourned; thus letting in the same force of the tender upon the adjourned day, which formerly could bear only on the point of time stipulated by the parties. If the injunction stare decisis be allowed in its proper force, it appears to me that after the course this court had taken in regard to mortgages terminating in Runyan v. Mersereau, it was fully authorized, not to say bound, in Jackson v. Crafts, to assume that the law day stood open until foreclosure. To have labored the point might have implied weakness in an important practical position, which the legal school in which Mr. Justice Woodxvorth had been bred, very justly deemed it unsafe to concede. It could not have been originally wrong, if it be right to say that the mortgagee shall be content with his money. But if otherwise, the wrong would be much greater were it to be overthrown after standing for more than twenty years, and entering as an acknowledged element into the mortgage transactions of a great commercial state. Ram on Legal Judgment, 4, 5.
Tribunals of other states, we are admonished, hold a distinction between the effect of tender and payment after x the day. Hill v. Payson, 3 Mass. R. 559. Maynard v. Hunt, 5 Pick. 243. Were this so, even upon good reason, the foreign law of mortgages ought cautiously to be received against what has, I think, reached the rank of a postulate in our own jurisprudence. But the point did not arise in Hill v. Payson ; and the obiter dictum relied on is very latitudinary. The court said that a tender would not entitle to an ejectment, without distinguishing betxveen a tender at the day or after. Maynard v. Hunt is indeed to the point, but founded on a course of reasoning which I think we have seen cannot be sustained. The case says [490]*490that passing the law day vested a legal title in the mortgagee ; and yet suggests that payment would divest it, because by-accepting the money the debt is discharged, and the mortgagee waives the condition. Clearly, if there was an estate in fee, it could not thus be divested by paroi. Calling it payment and waiver does not change the nature of the act, which, without writing, is made to' transfer an inheritable freehold, contrary to the statute of frauds. Then the consequence of a tender is said 'to be different because the debt is not discharged. The reason- is clearly too broad. The debt is not discharged even by a tender at the day; -yet the lien on the land was extinguished as long ago as Littleton’s day, Co,. Litt. 209, a. b. § 338, of Litt. & Coke’s Commentary ; leaving the debt due and recoverable by action against the mortgagor. - If, in Massachusetts, the law day be not postponed, as it would seem from their cases, then indeed -neither payment nor tender afterwards could avail any thing. In a former case in the same court, Wilde, J. said the mortgagee’s estate and right to possession continues until the full and complete performance of the condition or a tender equivalent thereto ; thus at least admitting the doctrine cited from Co. Litt. to which he refers. The short reason of the Massachusetts cases is, however, I apprehend, that they have declined to consider the mortgage a chattel interest, and in that have come short of us. There a mortgage cannot be assigned without deed. Mellen, Ch. J., reviews all their cases decided down to 1823, and says expressly they have come short of the New York cases. Vose v. Handy, 2 Greenl. 333. That case holds, also, that at law it can be assigned only by deed in the state of Maine. It were more consistent in Massachusetts, to maintain with the late Judge Trowbridge of that state, that even payment after the day will not divest the legal fee of the mortgagee. See his opinion, as stated by Story, J., in Gray v. Jenks, 3 Mason, 523. Indeed, such I take to be the plain amount of Parsons v. Wells, 17 Mass. R. 419. The theory, then, of Massachusetts and’New York is diametrically opposite. There the mortgagee has a freehold, which passes only by deed. Here he has but a chattel interest, defeasible by payment; and which interest is indeed [491]*491so clear of the statute of frauds, that a deed expressly granting all the mortgagee’s estate in the land will not carry the interest in the mortgage. This was held in Jackson ex dem. Curtis v. Bronson, 19 Johns. R. 325. Why will it not touch that interest ? The court answer, “ the mortgagee has a mere chattel interest, and the mortgagor is considered the proprietor of the freehold.” A deed of land will not of course carry a chattel. This decision was in the spirit of Martin ex dem. Weston v. Mowlin, decided by the king’s bench, Lord Mansfield being at their head, 2 Burr. 969, 978, 979, which held that a devise of land would not carry a mortgage interest, though a bequest of the money would. We thus come back to the notion of a chattel pledge redeemable at any time. Lord Mansfield said the estate in the land is the same thing as the money due upon it, and will pass by a will not executed according to the statute of frauds. Wilde, J. repudiates this doctrine in Parsons v. Welles, alleging that Lord Mansfield cited no authority, and his remarks seemed difficult to reconcile with established principles or the statute of frauds. In this state we have always acted fully up to Lord Mansfield’s doctrines, and carried them out in all their consequences. It was again under this view that we were pressed with cases decided in respect to mortgages of personal property, where default at the day carries an absolute title for every purpose, at least in a court of law. Those cases have been before cited, and among them Patchin v. Pierce, wherein several things are pointed out showing that the law has raised, in regard to chattel mortgages, a different system, which, for many years, no one has thought of applying to mortgages of real property. Upon chattels, the courts of law, however it may be in equity, have let in the hated pactum commissorium, or dead pledge of the civil law; though Mr. Justice Nelson thought that its character might be softened in chancery. Patchin v. Pierce, 12 Wendell, 62, 63.
But whatever be the law of mortgages in general, how stand these defendants when placed upon the footing of their charter? It will be perceived I am all along supposing that they were, at the time of the tender, still the holders of the [492]*492premises in question under the purchase of their agent Tibbits; a question to be examined by and by. The third section déclares that, so long as they thus hold, notwithstanding a decree of foreclosure, the mortgagor shall have the right of redemption. The argument of 'the defendants is, “ True, you have a right, to redeem ; but that must depend on our willingness to receive the money. Till that time the lien continues.” It seems to. me that the statement of such an argument would carry its own refutation,.even under the rigorous doctrines of Goke. A right created by statute adverse to the mortgagee, and yet no remedy at law, is as if statute and law were not identical! • A right to redeem, but none "to tender the money! A statute fixing the law day, and yét a tender at thait day shall not take away the lien! Suppose the defendants had stipulated in terms, under a statute authorizing it, that their debtor might redeem at any time before they had sold; that is this case, and the argument need not be -pursued. It were indeed a singular law which should declare the right of payment in the debtor, but withhold .the effect, of a tender. A statute lacks one essential attribute of a municipal law, when neither by its own provisions, nor the system under which.it is enacted, any method is pointed out for redressing the wrongs which arise from its infraction. ' ..
Lastly, did the1 premises in question at the time of the tender remain in the hands of the' defendants unsold ? No point is now made that Mr. Tallmadge was not authorized to affix the corporate seal'of the company to the contract with the Merritts ; though it is still insisted that it wanted mutuality, inasmuch as no authority was shown in Wm. T. to execute for Isaac Merritt. But it is now settled that the company would be bound by this contract though executed only by themselves. 2 R. S. 69, § 8, 2d ed. McCrea v. Purmort, 16 Wendell, 465, and the cases there cited. Formal -difficulties being out of the way, shall this contract be-deemed a sale of the land within -the charter? The Merritts took a contract from the company to convey within a reasonable time after they should become vested with the title. This qualification, doubtless,-had reference to the [493]*493embarrassed state of the title as between them and Tibbits, who as their agent, and it must be taken by their consent, purchased and took a deed in his own name. We have already noticed the impropriety of allowing such a condition of things to impede the plaintiff’s course in making his tender ; while it had a very different consequence in respect to the defendants. It at least put them to pursue an equitable litigation. Having no title, they were very properly guarded in their contract with the Merritts. They would not convey, nor agree to convey absolutely; but only on condition that they could obtain the title ; and they now say that this agreement was an actual sale of the lands. This they must make out in order to cut off the plaintiff’s right to recover.
That here was a strict sale, cannot be pretended, within either" the legal or common definition of the term. It was a contract to sell at another day, on conditions yet to be performed. It is claimed to derive its operation, and we have just seen does operate under the 8th section of the statute of frauds, which relates'to contracts respecting real estate. That section, I think, itself draws the distinction, as I believe it will be found to exist in all those cases where it is sought to be announced by a legal accuracy of expression. The words are, “ every, contract for the sale of any lands, 4*c.” shall be void unless in writing, subscribed by the party “ by whom the sale is to be made." In short, this contract with the Merritts was for a sale to be made ; and that sale was to be made after the company had acquired title. Again, Bull v. Price, 5 Moore & Payne, 2, maintains the same distinction. The defendant had retained the plaintiff to negotiate q sale of his land ;. and agreed to give him two pounds per cera, on" the sum he obtained. A sale was negotiated, and the money ready to be paid ; but a delay arose in consequence of the vendee requiring that an incumbrancer should join in a conveyance. In an action for the two per cent. Tindal, Ch. J. nonsuited the plaintiff. He said he thought the word “ salé” must be construed strictly; a sale consummated and conveyance executed. On motion at the bar, the nonsuit was sustained. It is proper to [494]*494observe that considerable’stress was, at the bar, laid upon the phrase “on the sum to be' obtained,” .as- implying that the money must be actually paid, or at léast tendered to and refused by the plaintiff.' But the case furnishes Lord Chief Justice Tindal’s definition of a sale when taken according to its strict meaning. It is sometimes used to denote the striking down of land at auction, though the time for executing a deed may be suspended, as in case, of sheriffs’ sales of. land subject to redemption, a sale of land under a power contained in a mortgage, or by the comptroller for taxes. These, and I don’t know but some other like cases, were mentioned in argument; but would hardly furnish out a meaning for private transactions in real estate. Johnson, in his dictionary, gives as á secondary meaning of the word, “ a public and proclaimed exposition^of goods to the market ; auction.” The operative words in a deed of bargain and sale, such as would have sátisfied the covenant in question, and which is our ordinary method of passing title, are—have granted, bargained ¡sold, &c. and by these presents do grant, bargain, sell, &c. 3 Wood’s Conv. 42. Long says, a sale is a transferring of property from one person to. another." He says it is founded on a valuable consideration, by which the party who disposes of his lands or goods is" induced, &c. Long on Sales, 1. In short, a sale passes the property, and is called - a contract executed ; it operates in rem, conferring a right to take possession or bring ejectment or trover.. A contract to sell, such as the one before us, is executory, and operates in personam only. Though one has agreed to sell his farm unconditionally, it must still in legal propriety be considered as unsold. The agreement creates but jus ad rem ; a sale, to be complete, must carry the jus in re. The former is a step towards the act of sale ;1 the latter is the act itself. Here the jus in re all along continued in the company. The Me'rritts might refuse to accept the.deed of sale ;■ and the chancellor in his discretion might have refused to decree a sale, on the ground that-a cloud rested on the company’s title.
Something, too, upon this point, it appears to me, may be collected from the context of the section which confers the [495]*495right of redemption. This declares that the company shall sell and dispose of land purchased by them within five years after it acquires the same; and shall not be capable of holding the same after that time. If they do so hold, the land shall become forfeited to the government. Can there be a doubt that these phrases contemplate complete acts of acquisition, disposition arid forfeiture ? They relate to the whole estate, legal and equitable. ■ Can it be that the act of parting with but a portion of the estate will-satisfy this provision? The Merritts, admitting them to have taken possession and enclosed the land, acquired but an estate at will. The company were their landlords, holding the fee, and at least, on the Merritts’ refusing to perform by accepting, a deed of bargain and sale and executing a mortgage security, might turn them out of possession by an -ejectment. Is this the kind of disposition which shall work the consequences of cutting off the right of redemption, and avoiding forfeiture? When shall the company be said to acquire the property in land ? When the deed of conveyance is delivered. When do they cease to hold by selling and disposing ? When they have delivered the deed of conveyance. If they may hold on to a small part of the estate, they may also to a larger. The construction contended for by thé company would enable them to evade both redemption and forfeiture, still retaining unsold, the substantial interest in the land.
Is it then permissible to leave the primary, legal and most common meaning, of the word sale, and resort to secondary, accidental or constructive meaning ? I am aware that we are here again brought to encounter the opinion of the learned'chancellor in Merritts v. Lambert. He thinks, that after the creation of a right to a future specific performance, the property is no longer to be considered unsold. If this be so, it must depend on the rule peculiar to his court, that what ought to be done shall be taken as done. I admit this is a rule very healthful in overreaching those who buy, or come in under the covenantor, with notice. But it is after all no more than a fiction, and should never be strained to the working of injustice. .The utmdst amount of the argument is, that the word sale has in chancery a [496]*496constructive meaning, comprehending a class of contracts not known to the law ; that, for certain purposes, it considers a contract executed, which is not so, and we are required to construe a word used by a statute in the same broad sense; in short, to adopt the equitablé, not the legal meaning of the word. Aside from objections arising a priori to such a test of'statute meaning, I think it will be found that' all the cases, so far as they have spoken, are against it. I will mention one which seems to be-in point. The statute,
1 R. L. of 1813, p. .74, §-4, provided that where A. was seised or possessed of land in trust for B., the land might be sold on execution against B.; and Chancellor Kent held that the statute did not extend to such constructive trust as - a court of equity raises in favor of "a covenantee under a contract to sell. His words are, that to warant an execution against such land,- “.there must,be either á real estate, or an interest,known or recognized at law.” Bogert v. Perry, 1 Johns. Ch. R. 52, 56. Yet, in. equity, here was a seisin in .trust for the execution debtor. “Equity,” says Sugden, “ looks upon things agreed to be done, as actually performed; consequently, when a contract is made for the sale of an estate equity considers the vendor as a trustee for the purchaser.” Sugden on Vend. 211, Brookfield ed. 1836. It is remarkable, that here again we have the real nature of the contract in. question stated, “ a contract for the sale of an estate” [at law], which equity, by a process of reasoning, ' extremely artificial, considers actually consummated —a sale made. - Is it sáfe to say the legislatuie meant the latter ? If asked,, would they say so ? It would be hazarding little to answer that nine tenths .of the legislature had never heard of the distinction. But if the distinction were to avail, how far shall it be carried ? Infictione juris semper esquitas existit. The title of the plaintiff was paramount to that of the Merritts. They could,not enforce their contract against the defendants, till the latter had acquired the legal title. Before they did so as between ■ them arid the heirs of Tibbits, the tender was made. They had clearly no right to file their bill against the company" at the time of the tender ; and even when the proper time [497]*497arrived, what would the chancellor decree ? Not that they had sold, but that they should sell by a deed of bargain and sale, to be approved by the master. The very reason of coming to chancery is, that the covenantor refuses to sell according to his contract. If he is there found to have already sold to the complainant, the bill will be dismissed. We are called on to apply the doctrine of fictitious relation, which is never received to overreach intervening rights. At any rate, shall we carry it so far as to say that a covenant by A. to sell B.’s farm when A. gets a title, shall be considered a sale 7 I cannot s ee, however, that we are at all called on for secondary, remote or constructive meanings. I am sure the legislature could not have understood itself as sweeping over the whole field of executory and executed contracts, especially when providing indulgences to avoid the forfeiture of the mortgagor’s property, and declaring, as they have, that the act shall be construed benignly and favorably to effect its ends and purposes. Would not such a construction rather operate as a snare to mortgagors? If there be a doubt on the question, I think it should be turned against the forfeiture of estates—against the encroachments of mortgagees. I wish not to be understood as speaking censoriously; but such, I think, has been the spirit of our adjudications—such was that of the Eoman law.
It would be arrogant to say, after the decision of his honor the chancellor, that I feel no doubt on any of the points raised in this cause. I will say, however, that aside from his decision, I have found no serious difficulty in concluding that the verdict at the circuit must be sustained.
The Chief Justice concurred in this conclusion.
Mr. Justice Bronson dissented.
New trial denied.