Hooton v. Grout

1 Super. Ct. Jud. 343

• Court: Massachusetts Supreme Judicial Court
• Decided: April 15, 1772
• Status: Published

Opinion

QUESTION : Whether Lands and Tenements mortgaged may be taken in Execution for satisfying the Mortgagee’s just Debts.

Anfwer: The Province Law, 8 W. 3, c. 3, provides that all Lands and Tenements belonging to any Perion in his own proper Right in Fee ihall hand charged with the Payment of his juft Debts, as well as his Perfonal Eñáte, and be liable to be j taken in Execution for fatisfying the fame.

(2)

Day the Deed was filed and recorded in the Registry at Worcester. Held that the Record was good against the Attachment.

The Act of 6 Geo. 1, c. 2, subjects the Debtor’s Real Estate to be taken in Execution to satisfy any Judgment recovered against him, if he doth not satisfy it by Money or other Specie; and directs how the Value shall be ascertained. (3)

The Act of 8 and 9 G. 2, c. 5, subjects the Right ye Mortgagor hath in Equity to redeem the Land, &c., to be attached and taken in Execution for satisfying his Debts: (4) fo that the Whole of the Debtor’s Real Estate, and the Right he has to redeem any Real Estate mortgaged, is, by the Laws of this Province, made liable to be taken in Execution for satisfying his Debt.

A Mortgage is where one borrows Money of another and pledges his Land or Tenements, &c., to the Lender, to secure to him y6 Repayment, at a future Day, of the Money lent. 1 Inst. 205 a. Treat, in Eq. 86, 7, 91. Abr. Cas. Eq. 311, 327. 3 Bac. Abr. 632, 641. 2 Black. Com. 157, 8.

This is done by the Borrower’s conveying his Land, &c., to y6 Lender to hold to him, for a certain Number of Years or in Fee, upon Condition that if the Money, &c. be repaid by the Day, that then the Mortgagor may re-enter, &c. 3 Bac. Abr. 632. 2 Black. Com. 157, 8.

The former is called a Term, and is a Chattel Real, which doth not descend to the Heir, unless it be attendant on the Inheritance, but goes to y6 Executor, is Legal Assets after his Entry or Recovery, and may be sold by him, without the Aid of the Court of Chancery, in England. 3 Bac. Abr. 632. 1 P. Will. 730, 1. Or the Superiour Court here.

A Term, not attendant on the Inheritance, may, in England, on a Fi. Fa., be taken and sold by a Sheriff; and, on an Elegit, he may deliver it to the Creditors at the appraised Value as Personal Estate, or extend it as Real. Comyn vs. Brandlyn, Moor, 873. 2 Inst. 395 b. 4 Rep. 74. 8 Rep. 96, 171. It maybe sold as well as other Goods without Appraisement. Wood’s Inst. 632.

When Lands or Tenements are mortgaged in Fee, the Land, &c., and the Mortgagor’s whole Estate therein passes presently to the Mortgagee; so that such a Mortgagor, in England, has by Law Nothing left but the bare Condition. 1 Inst. 2oy a. 210. Str. 689. Ca. Temp. Talb. 66, 68. 2 Cha. Ca. 97. 2 P. Will. 416.

The Mortgagor has a Right in Equity to redeem the Land, &c., at any Time within 20 Years after Forfeiture for Condition broken, if the Right be not foreclosed or released before; but it is only a naked Right and not liable to be taken in Execution, in England. 2 Atk. 292. Nor is it Legal Assets there. 2 Vern. 62. Though here, by Force of the Province Law, 8 & 9 G. 2, c. 5, it may be attached and taken by Execution for satisfying the Mortgagor’s Debt.

Though the Estate of a Mortgagee in Fee is only a Fee Simple conditional at first, and while it is uncertain whether ye Condition will be performed or not, — yet the Mortgagee has as ample and great an Estate in the Land as if it was an absolute Fee Simple, though it may not be fo durable. 1 Inst. 18 a.

If the Condition be not performed, the Mortgagee’s Estate in y6 Land, be it an Estate for Years or of Inheritance, becomes absolute; and, at Law, in England, is the same as though it had not been Conditional; and the Mortgagor could have no Relief in the Common Law Courts, untill the Stat. of 7 G. 2, c. 20, was made, which provided that on Ejectment brought by the Mortgagee, &c., if the Mortgagor, See., pay the Principal, Interest, &c., the Mortgagee shall reconvey the Estate to the Mortgagor, &c.; which shews plainly the Sense of the Parliament, that the Legal Estate is in the Mortgagee; or they would not have obliged him to reconvey it to a Mortgagor in actual Possession of the Land; as he must be supposed to be, when Ejectment is brought against him. 2 Black. Com. 158, 9, & Stat. 7 G. 2, c. 20.

Though the Court of Chancery, upon Consideration that the Land was at first intended by the Parties only as a Pledge and Security for the Repayment of the Money lent, &c., allow the Mortgagor, his Heirs, Executors, Administrators or Assigns, upon Payment of the Money lent, &c., to redeem the Land, though forfeited, and in the Possession of the Mortgagee, his Heirs or Assigns; yet that Court also considers the Legal Estate in the Land mortgaged to be in the Mortgagee; and, if it be a Mortgage in Fee, that the Mortgagor has no Estate at all left in the Land. 1 Vern. 412. 2 Cha. Ca. 97, 187. 2 Vent. 337.

This last Point came directly in Question before Sir Joseph Jekyll, Master of the Rolls, in the Case of Haskett vs. Strong, 12 G., which was thus: — Mr. How mortgages certain Lands to Neal for 500 Years; and afterward mortgages them to Haikett in Fee. Neal assigns his Term to Strong, who advanced more Money to How, and took of him a Deed of ye Inheritance. Haskett contended that the Term was merged in the Inheritance; but his Honour decreed that it was not; because How, after he had mortgaged to Haskett in Fee, had no Estate in him to grant, and then the Term could not be merged in a void Grant of the Inheritance. Stra. 689. Lord Chancellor Talbot in 1734 made a like Decree in the Case of Collet vs. De Gols & Ward, —that Ward, the Mortgagee, had the legal Estate in the Land, and that Tyssen, the Mortgagor, had no Estate in it to convey. Ca. Temp. Talb. 66, 68.

Upon this fame Principle it is, that a third Mortgagee, without Notice, by buying in the first Mortgage, secures himself against the second Mortgagee; for, being equally intituled in Equity to a Repayment of the Money lent on the third Mortgage, as the second Mortgagee is on his, and having by the Purchase of the first Mortgage obtained the legal Estate in the Land, a Court of Equity will not take that from him, in Favour of one who has no more Equity on his Side than the third Mortgagee hath. 2 Vent. 338. 1 Vern. 187. 2 Vern. 29, 157, 159. Abr. Ca. Eq. 322. 1 Cha. Ca. 162, 201. Hard. 173, 318. Fra. Max. 64.

- It also is upon this same Principle, that the Mortgagee, after having received the Money due to him, is, by the Court of Equity, considered as a Trustee to the Mortgagor, and holding the Estate in Trust for him, untill he reconveys it to him. 3 P. Will. 252, Note. That the Heir of the Mortgagee has the Use and Benefit, of the Land, untill it is redeemed. It descends to him, and he holds it as a Trustee for ye Executor. Abr. Ca. Eq. 327.— That, upon the Mortgagee’s dying intestate, the Land mortgaged in Fee descends to his Heirs, he holds it in Trust for the Administrator untill the Money is paid. Pre. Chan. 265. Abr. Ca. Eq. 327. 3 Bac. Abr. 641. Treat. Eq. 86, 88.— That the Mortgagee may devise the Land as Part of his Real Estate, and it shall pass accordingly. 2 Vern. 383. Ca. Eq. 3. 3 Bac. Abr. 642. 2 Burr. 978. — That, although a second Mortgage in Fee is considered as such, between the Parties, yet Nothing passes by it but the Mortgagor’s Right of Redemption ; and, on a third Mortgage, only the Right of redeeming the first and second Mortgages. Abr. Ca. Eq. 312.

Objection 1st. But it is objected, that Ld. Ch. Just. Mansfield, in the Case of Martyn & Mawlin, B. R. 1760, said that “a Mortgage is a Charge upon “ the Land, and whatever would give the Money “ will carry the Estate in the Land along with it to “ every Purpose.” “ The Estate in the Land is the “ same Thing as the Money due upon it. It will “ be liable to Debts; it will go to Executors; it “ will pass by a Will not executed with the Solemni- “ ties required by the Statute of Frauds. The As-“signment of the Debt, or forgiving it, will draw “the Land after it, as a Consequence. Nay, it “ would do it, though the Debt were forgiven by “ Parol; for the Right to the Land will follow, “ notwithstanding the Statute of Frauds.” — And that Lord Hardwick says, “ the principal Right of “ the Mortgagee is to the Money, and the Land is “ but an Accident.”

In the Case of Martyn & Mawlin, there were but two Points considered or determined by the Court, First. If the Father did, by his Will, give his Son and Daughter an Estate Tail in a certain Close, mortgaged to the Father in Fee, and into which he had entered for the Condition broken, and the Mortgage had run 8 or 9 Years. Secondly. If the Son and Daughter took such an Estate in the Close, whether it was well barred by the Surrender. And the Court determined, that the Testator did not give his Son and Daughter an Estate Tail in the Land, and that, if he had, the Estate would have been well barred by the Surrender; — but it was not because the Court thought the Testator could not give his Son and Daughter the Close to hold as an Estate Tail, but because it appeared to the Court, upon Consideration of the whole Will, that the Testator did not intend to give them the Land, but only the Money due upon it. For Lord Mansfield, in the Case, expressly says, if the Reporter is not mistaken, that — “ if it appeared that “the Testator really meant and intended to devise “ the Close, as Land, it would be a Devise of the “ Land, the Mortgage being forfeited by Law, and “ the Estate in the Land become absolute.” And Lord Keeper Cowper says, — “If a Man, seised of “ Lands in Fee which were only mortgaged to “him, devises them to his Son and his Heirs, and “says, they shall go as an Inheritance, surely the “ Heir, if the Mortgage be paid off, shall receive “ the Money, and not the Executor; for the Fa- “ ther, who had the governing Power over the “ Estate, may dispose of it as an Inheritance so long “ as it continues fo, and y® Money, when paid off, “Shall go as he intended the Land should.” Gilb. Ca. Eq. 3. That is, to y@ Heir, and not to ye Executor.

So, a Devise to the Heir, of the Land mortgaged, will intitle the Heir to the Money, if the Land be redeemed. And, on the other Hand, if the Mortgagee give the Money due on the Land to his Daughter, and the Mortgagor pays it to her, the Court of Chancery will oblige the Heir, to whom the Land descended, to reconvey it to the Mortgagor; but, if he refuses to pay the-Money and redeem the Land, the Court will order the Land to be fold to raife the Money for the Daughter, or conveyed to her by the Heir, unless he will foreclose the Mortgage, pay the Money and keep the Land, as he may. 2 Vern. 67.

In this Sense, and in this Manner, a Gift of the Money may eventually carry the Estate in the Land, and indeed, the Land itself along with it. But, if Lord Mansfield faid, “that y° Estate in the Land is. the same Thing as the Money due upon the Land,” it is not very easy to understand what he meant or intended thereby; for, if that be literally true, it necessarily follows, that the Money due upon the Land is the Estate in it; which is not only absurd, but at once destroys the Distinction between a Mortgage of Land for a Term only, and a Mortgage in Fee, — if it be for the same Sum, — as the Mortgagee’s Estate, in that Case, must be the same in both; which his Lordship could not possibly mean. If his Lordship meant that the Mortgagee’s Estate in the Land was worth no more than the Money due upon the Land, that may be true. But, that the Mortgagee’s Estate in the Land will be liable to Debts, go to Executors, and pass by a Will not executed by the Solemnities required by the Statute of Frauds is not true with Regard to Mortgages in Fee or for a Term attendant on the Inheritance. Sir Joseph Jekyll, Master of the Rolls, decreed, that a Term attendant on the Inheritance would not pass by such a Will; and, upon an Appeal, his Decree was affirmed by the Lords Gilbert and Raymond, as Commissioners of the Great Seal, in the 8 G. 1 Gilb. Ca. Eq. 168. And, surely, if a Term attendant on the Inheritance will not pass by such a Will, the Inheritance itself will not. Nor do Lands mortgaged in Fee go to Executors, but descend to the Heir; and the Executor cannot obtain the same without the Aid of the Court of Chancery. And then they are not Legal Assets in the Hands of the Executor, but Equitable Assets only. These Propositions, therefore, could not be intended by his Lordship as extending to all Mortgages, though they may be true as to Mortgages for Terms not attendant on the Inheritance. — “ That the Assignment of the Debt, or the Forgiving of it, upon Parole, will draw the Land after it as a Consequence,” without the Aid of the Court of Chancery, is not true, unless Lord Hardwick was greatly mistaken, when he said, in the Case of Harrison v. Owen, 1 Atk. 520, “ That, if a Mortgagee “ cancells a Mortgage, and it is found in his Posses-“sion, it is as much a Release (of the Debt, he must “ mean) as cancelling a Bond; but it doth not con- “ vey or revest the Estate in ye Mortgagor; for that “ must be done by some Deed.” If assigning the Debt or forgiving it, would reveil the Estate in the Mortgagor, surely his paying the Money would do it; and yet the Mortgagee, after he has received the Money, is a Trustee to the Mortgagor, untill he hath reconveyed the Estate. 3 P. Will. 252, Note.

To what End are all the Applications to Chancery to compel the Mortgagee, his Heirs or Assigns to reconvey the Estate, if paying the Money or tendering it would revest the Estate in the Mortgagor? As none of these Points came directly in Question in the Case of Martyn & Mawlin, and it doth not appear that either of the other Judges concurred with Lord Mansfield in those Propositions (if they ever fell from him), they cannot Hand in Competition with contrary Decrees and Determinations, regularly made upon the Points when directly in Question before the Court. But we have no Assurance thefe dark Sayings were ever uttered by Lord Mansfield. For the Reporter, Burrow, in his Preface, p. 8, says, “ I do not take my Notes in “ Short Hand, — I watch the Sense, rather than the “ Words, and, therefore, very often use some of my “ own. I do not always take down the Restrictions “ with which the Speaker may qualify a Proposi- “ tion, to guard againist its being understood univer- “ sally or in too large a Sense. And, therefore, I “ caution the Reader always to imply the Exceptions “ which ought to be made, when I report such “ Propositions as falling from the Judges.” So that it is not certain that any of the Propositions are laid down in Lord Mansfield’s own Words, nor that they were laid down without Restrictions and Limitations; and, as they are inconsistent, — one plainly distinguishing between the Estate in the Land, and the Money due upon it, and the next asserting that they are the same Thing—and almost all of them being inconsistent with the Decrees and Determinations of some of the great Men in the Nation and the constant Course of the Court of Chancery, they can be of no Authority, ought not to be palmed upon Lord Mansfield, but attributed to the inaccuracy of y® Reporter. Lord Mansfield certainly knew the Difference between Money and an Estate in Land,—between a Term and an Estate of Inheritance, — and between Legal and Equitable Assets; — which the Propositions, as they stand, absolutely consfound, and, therefore, are not to be regarded.

Objection 2nd. But Lord Chancellor Hardwick says, — “ The principal Right of the Mortgagee is to the Money, and the Land is but an Accident.” This is, doubtleis, true; and no Ways inconsistent with what his Lordship and others have said receding Mortgages. Lord Hardwick also says, “ That a Mortgage is a Debt by Specialty, and the Land is regarded, in this Court, (Chancery) only as a Pledge and Security for the Payment of the Money.” 2 Atk. 435, 445. In Fra. Treat. Eq. 91, it is said, “ the Principal Right of the Mortgagee is to the Mortgage-Money, and his Right to y® Land is only as a collateral Security for the Payment of it,” — and, in England, it always is fo, because the Court of Chancery look upon a Mortgage as a general Debt, and the Land only as a Security. 2 Atk. 437. That Court considers the borrowing the Money as creating a Debt, which, in good Conscience, is due and ought to be paid: And, therefore, that Court will, sometimes at least, enforce the Payment of fo much as the Proceeds of the Land, when sold, fall short of answering the Debt, though there was neither Bond nor Covenant in the Deed to oblige the Mortgagor to repay the Money. Salk. 449. 3 P. Will. 360, t. So that the Debt is considered, in Chancery, as subsisting independent of the Land. And the Mortgage as not essential to the Debt, but only additional and collateral Security for the Payment of it. Fra. Treat. Eq. 91.

An Accident is a Non-essential; and therefore Lord Hardwick with strict Propriety said, “ The Land is but an Accident,” it being not essential to the Debt. But, if the Mortgagee has no Estate in the Land, how can it be any Security to him for the Repayment of the Money lent, or how can it be faid to be pledged for the Security of the Repayment of the Money, if the Mortgagee has not the Land nor any Estate in it, according to the legal Sense of the Word? Surely it cannot. Where then is the Estate ? It is not in the Mortgagor ; he, though in actual Possession of the Land, is but Tenant at Will to the Mortgagee. Newport's Case, Skin. 424. Fra. Treat. Eq. 91. Carth. 414. Comb. 249, 250. Salk. 245, 6.

A Mortgagor in Fee, in England, has no Estate left in the Land that can be taken from him by Execution, though all Perfonal Estate and a Moiety of the Real may be fo taken. 2 Atk. 292.

Though a second or third Mortgage in Fee be considered as a Conveyance of the Land between the respective Parties, because the Deed estops the Mortgagor and his Heirs from saying he had not the Land, or such an Estate in the Land as he hath taken upon him to grant, yet, in Fact, Nothing passes by the second Deed, but ye Right of redeeming the Mortgage, or by the third than the Right of redeeming both the former. Fra. Treat. Eq. 90.

This Right of Redemption is not Legal Assets, in England. 2 Vern. 61. Nor are Mortgages in Fee Legal Assets in the Hands of the Executor or Administrator, unless the Money be paid them: Nor has the Ordinary Anything to do with them, unless the Money be paid. If it is not paid, the Heir may foreclose the Mortgagor; and then the Court of Chancery will not oblige the Heir to reconvey the Land to y® Executor, if he will pay him the Money due upon it. 2 Vern. 61, 67. Fra. Treat. Eq. 91, 92.

Objection 3rd. Mortgages are looked upon as Parts of the Personal Estate; the Money lent coming out of the Personal Estate, it ought to return there.

It is so considered in the Court of Chancery, unless the Mortgagee in his Lifetime or by his last Will, doth otherwise declare, or dispose of the Mortgage. Fra. Treat. Eq. 91, 2. But where the Mortgagee enters for a Forfeiture, and absolutely sells the Land to J. S. and his Heirs, it shall not be looked upon in his Hands as a Mortgage fo as to make it Personal Estate. 1 Vern. 271, Cotton v. Iles, 1684. So, if Mortgagee in Fee, after Forfeiture and Entry, devises the Land to his two Daughters and their Heirs, and his other Mortgages to them and their Executors, the Daughters take the Land mortgaged in Fee as Real Estate, discendible to their Heirs untill it is redeemed. 2 Vern. 582. If Land mortgaged in Fee be devised as Real Estate, and afterwards redeemed, the Money shall go to him to whom the Land would have gone, and not to the Executors, as Part of the Personal Estate. 1 Vern. 4. 3 Bac. Abr. 642. Gilb. Ca. 3.

Charles Cox, possessed of a Term, mortgaged it, and died possessed of the Equity of Redemption of the Mortgage : — and, upon the Question, if this mere Equity of Redemption was Legal, or Equitable Assets only, Sir Joseph Jekyll, Master of the Rolls, after taking Time to consider it, delivered his Opinion, with Solemnity, that this Equity of Redemption was Equitable Assets only; the Mortgage being forfeited at Law, and the whole Estate thereby vested in the Mortgagee. 3 P. Will. 342.

Assets are of two Sorts, — one, by Descent—the other, in Hand. By Descent is where the Testator binds himself and his Heirs and dies seised of Lands in Fee Simple which descend to his Heirs; such Lands are Assets by Descent. But where one is indebted and makes an Executor and dies, leaving sufficient Estate that by the Course of the Law comes into the Hands of the Executor, or Profits come into the Hands of the Executor in Right of his Testator, this is called Assets in Hand. Terms of Law. 2 Burn, Eccl. Law, 668.

Assets are also divided into Legal and Equitable. Legal Assets are such as are liable to Debts and Legacies by the Course of the Law; Equitable Assets are such as are only liable by the Help of a Court of Equity. Ib. 669.

It has before been observed that the Mortgage of Land for a Term of Years is but a Chattel Real; and, unless attendant on the Inheritance, goes to the Executors without the Aid of a Court of Equity, and, consequently, is Legal Assets as soon as the Executor enters or recovers it; as it may be fold by him, without the Aid of any other. 1 P. Will. 730, 1. 3 Bac. Abr. 632. But Mortgages in Fee are not Chattels, but Estates of Inheritance that may, by the Mortgagee, be granted or devised as Real Estate; and, if they are not, will descend to his Heir; and the Executor cannot avail himself thereof, without the Aid of the Court of Chancery, if the Mortgagor is not willing to redeem and there is neither Bond nor Covenant to oblige him to do it. And, therefore, a Mortgage in Fee, as such, in England, is not liable to Debts in general or Legacies, by the Course of the Law, as Goods and Chattels are, though such Mortgages may be Assets by Descent, and make the Heir answerable for the Value of it, if it is not redeemed. The mortgaged Premises are considered, in Chancery, after Forfeiture, as being the Estate of the Mortgagee, veiled in him, and become absolute by the Forfeiture; That he, who comes into Chancery to redeem the Estate, shall pay the Costs in Chancery, which are very great. 3 P. Will. 342.

The Mortgagee of a Term, though he, after Forfeiture, has the absolute Estate for the Term, yet cannot make it Real Estate by devising it as such; and, therefore, though it be devised in Tail, the Executor shall have it. 1 Roll. Abr. 915. 2 Burn’s Eccl. L. 646. And yet, a Mortgagee in Fee may consider ye Estate as Real or Personal, and dispose of it accordingly; because, the Land being Real Estate, the Mortgagee in Fee, having the Land and the whole Estate in the Land veiled in him, may grant or devise it as Real Estate; and it shall pass accordingly; and being also intituled to y° Money lent and due on the Land, either by Bond, or Covenant in the Deed (as is most commonly the Case,) and also in good Confidence, the Mortgagee may give y® Money; and, if it be paid the Legatee, he shall have it; or, if it can be recovered by the Bond or Covenant, he may get it in the Course of Law; or he may obtain it by the Aid of the Court of Chancery, in ordering y® Land to be sold to raise the Money, or conveyed by the Heir to the Legatee, &c.; and, in that Sense, the Gift of y® Money may be laid to draw y® Land after it.

This evidently shows that the Legal Estate in the Land is in the Mortgagee, as well as a Right to y® Money which the Land is pledged as a collateral Security for the Payment of; or else it could not paid by his Gift or Devise of it, as an Inheritance. Not only the Act of Parliament, but also the Prov. Law, 10 W. 3, c. 14, (⁵) shews that the Makers of those Acts supposed that a Mortgagee in Fee had an Estate of Inheritance which he might aliene; and, if he did not do it, that it did descend to his Heirs. The Prov. Law provides that the Mortgagee, his Heirs, or the Tenant in Posseilion, being the Purchaser, and holding in his own Right, upon the Mortgagor, or Vendor, or his Heirs, tendering Payment of the original Debt, &c., shall accept the same and restore Possession of the Land to the Mortgagor, &c., and release their Right therein. There is no Mention made of the Money being paid to ye Executor or Administrator of ye Mortgagee, or their releasing their Right to ye mortgaged Premises. The Legislature well knew, that, after Forfeiture and Entry for the Condition broken, the Estate was absolutely in the Mortgagee, his Heirs or Assigns, and would remain fo forever here, unless they provided for the Relief of ye Mortgagor, &c.; which they did by that Act. It is the only Relief he has here, and it is a Relief given by Law. So that it is riot in the Discretion of ye Justices of the Inferiour or Superiour Courts, whether the Mortgagor, &c., shall, by paying the Mortgage Money, &c., redeem the Land within the Term appointed by the Act, nor whether he shall do it after the Expiration of ye Term, as it is in the Court of Chancery. Therefore, after the Time allowed by Law for Redemption is past, the Estate is irredeemable, and the Mortgagee has the same Right, Estate and Interest in and to the Land as if it had been granted to him at first absolutely and without any Condition at all. And he then may, in every Sense, be as properly said to be seised in his Demesne, as of Fee, of the Land, if it was mortgaged in Fee, as any Tenant in Fee Simple can be; and the Land may be by him fold and devifed as an Estate in Fee Simple, and, if it is not, it will descend to his Heirs in Fee, subject only to his Widow’s Dower, and to be settled by the Court of Probate on one or more of the Children, as it will accommodate best; and the Widow has not the least Colour nor Pretence for taking a Third of it as Perfonal Estate, because it was a Mortgage, and holding that Third as an Estate of Inheritance, in Fee. Because it is a Real Estate, and, if she don’t hold it fo, it cannot descend to her Heirs, nor can she convey the Inheritance.

In England, the Common Law Courts hold, that the Estate passes presently upon executing the Deed and Livery of Seifin. The Court of Chancery holds, that the Mortgagee’s Estate in the Land becomes absolute upon the Condition not being performed. Our Law provides, that, upon the executing the Deed, acknowledging and registering it, the Land shall pass, without any other AN or Ceremony whatever; fo that the Land passes, here, as much as if there was Livery of Seifin given, and the Mortgagor’s Estate in the Land mortgaged passes with it, here, as much as in England. Can there, then, a Question arise in a Common Law Court here, whether any Estate in the Land mortgaged passes to the Mortgagee presently upon the Registry of the Deed, when the Court of Chancery allows, that, by the Forfeiture, the whole Estate is in the Mortgagee ; and that it is absolute; and that the Mort-gagor has no Estate left in him. Shall the Common Law Courts here say, the Mortgagee has no Estate in the Land? No, surely, unless they take it upon them to be wiser than the Law.

A Tenant in Fee Simple of Land has the largest Estate in it that a Subject can have. He can convey it absolutely or conditionally, for a limited Time or forever. If he mortgages the Land for a Time only, the Fee remains in him, and the Mortgagee has the Land during the Time, if it is not redeemed, and no longer; but, if it is mortgaged in Fee, the Land and all the Mortgagor’s Estate therein passes presently to the Mortgagee. A Mortgagor in England has Nothing by Law left but the bare Condition, though here he has not only the Condition, but also a legal Right, by 10 W. 3, c. 14, to redeem the Land after Forfeiture, at any Time within three Years after Entry for the Condition broken.

The Mortgagor, continuing in Possession, doth not hold the Land in his own proper Right here, any more than he doth in England, but is Tenant at Will of the Mortgagee here, as much as there; the Land therefore cannot be attached and taken in Execution as Land belonging to the Mortgagor in his own proper Right in Fee, by Force of 6 G. 1, c. 2, because the Land is not his, nor has he any Estate in it. The Right the 10 W. 3, c. 14 gives him to redeem the Land doth not give him any Estate in it before it is redeemed and reconveyed, any more than the Right in Equity to redeem doth, in England; that is but a naked Right, and cannot be taken by Execution there; Here, indeed, the legal Right the Mortgagor hath to redeem may be taken in Execution for satisfying his Debts: But the Creditor cannot avail himself of any more than what the Land is worth, above what it is mortgaged for: If the Mortgagor’s Creditor by Execution does not pay the Money due on the Land to the Mortgagee, he cannot have the Land; nor has he any Estate in or Right to it, but upon Condition of paying the Mortgage Money, &c., to the Mortgagee.

Where the Land is mortgaged for the full Value of it or more, the Right of Redemption is not only a naked Right, but it is of no Value to the Mortgagor, cannot be attached or taken in Execution by his Creditors with any Advantage to themselves, and, therefore, will not. In such Cases, then, if the Land cannot be taken in Execution as the Mortgagee’s Estate, it will not be taken at all, but must be exempt so long as it is redeemable; which may be an hundred Years after the Forfeiture for the Condition broken. That, surely, will be of no Advantage to Trade or the Community.

But why may not the Land be taken as the Mortgagee’s Estate for satisfying his Debts, as well as the Mortgagor’s Right of Redemption may, for satisfying his ? If it belongs to the Mortgagee in his own proper Right in Fee, it doubtless may, by Force of ye Province Law, 8 W. 3, c. 3. Where doth or can the Estate in Fee in the Land vest, if it doth not in the Mortgagee in Fee ? It must be in him or the Mortgagor or in Abeyance.

It is plain it cannot be in the Mortgagor, nor can a Feoffment or Grant of Land in Fee annihilate the Estate in the Land, any more than it doth the Land itself. It serves only to pass ye Land and the Mortgagor’s Estate in it to the Mortgagee; therefore the Estate in Fee cannot be in Abeyance. Then it must be in the Mortgagee in Fee; and that as soon as the Grant is made. It is not granted in Futuro, but in Presenti. Upon the executing, acknowledging and recording the Deed, all the Mortgagor’s Estate in the Land passes with it to the Mortgagee, and all the Estate then veils in him, that can vest. There is no future Act to be done by the Mortgagor or Mortgagee to make y® Estate veil in the Mortgagee, or to devest the Mortgagor of it. By the Mortgagor’s performing the Condition upon which the Estate in the Land is granted, and the Mortgagee’s acknowledging it in the Margin of the Record, the Land and the Mortgagor’s former Estate in it, upon his Entry, will return to him, and he will be in as of his former Estate. That is, y® Estate in Fee will be revelled in y® Mortgagor fo as to avoid all mesne Incumbrances. But, if the Condition be not performed, nor the Land redeemed within the Time limited by Law, the first Grant remains in Force, and the Estate at first granted to y® Mortgagee remains and continues in him without any Increase of Estate at all. Though the Land be irredeemable, the Mortgagee’s Estate in the Land is not enlarged, though it may be more certain and durable, as Lord Coke says. 1 Inst. 18. And it is evident that y® Makers of y® Stat. 4 and 5 W. 3, c. 16, fo understood it, when they provided that a second Mortgagee, without Notice of the first, should hold the Land for such Estate and Term therein, as was granted to him against the Mortgagor, &c., freed from y® Equity of Redemption as fully as if ye Land had been purchased absolutely and without Liberty of Redemption. See ye Stat. or 3 Bac. Abr. 648.

No possible Inconvenience can attend the attaching and taking in Execution the Lands mortgaged for satisfying ye Mortgagee’s Debts, as to ye Mortgagee, beyond what would attend ye taking his other Real Estate in Execution. Nor will any other Inconvenience attend the Mortgagor than doth every Purchaser of Real Estate: He may redeem it as well after it is taken in Execution as before. If the Whole is taken in Execution and the Year is elapsed, the Land is become irredeemable by ye Mortgagee; and then, if y® Mortgagor pays ye Money to y® Creditor by Execution, who, in Fact, holds the same as a Purchaser, his Reconveyance of y® Estate to y® Mortgagor is sufficient. If but Part of y® Land is taken, and the Mortgagor would redeem, the Mortgagee and his Creditor may together, on Payment of y® Money, reconvey y® Estate. If they will not do it, y® Mortgagor may file his Bill against them, and upon lodging ye Money in Court, they must reconvey y® Land to y® Mortgagor, or he will have Judgment and Execution for Possession of it.

It is true, the Mortgagor may pay y® Money to y® Mortgagee, after his Creditor has attached the Land for his Debt, without y® Mortgagor’s knowing it is attached, and thereby lose his Money: And fo a Purchaser may purchase Land after it is attached, and thereby lose his Money; but that has never been thought sufficient to prevent a Debtor’s Land being attached and taken in Execution for satisfying his Debts.

It might be of Advantage to make such Attachments more public, by certifying them to the County Register, or otherwise. If Lands mortgaged could not be taken for ye Mortgagee’s Debts, not only the Land will be exempt, but y° Money also. For, as our Mortgages in general are without any Bond, or Covenant in the Deed, the Money cannot, upon the Mortgagee’s absconding, be attached in Hands of the Mortgagor; for here such a Mortgage is only a Conditional Sale, and none of the Executive Courts can compel the Mortgagor to repay the Money. 3 Bac. Abr. 638, 9. Cro. Jac. 281. Yelv. 206. 2 D’Anv. Abr. 53.

Though it may be a Debt in Conscience, neither the Justices of the Inferiour Court or Superiour Court have, by Force of the Prov. Law 10 W. 3, c. 14, the Power of the Court of Chancery in such Cases. Their Power is limited. All the Power they have for determining Cases in Equity is given them by that Act, and the obliging a Mortgagor to redeem the Land comes neither within the Words nor Meaning of the Act. So that, if the Land cannot be taken as Mortgagee’s Estate to satisfy his Debts, he may have Ten or a Hundred Thousand Pounds secured to him by the Mortgage, which his Creditors, by no Postibility, can come at; he may shut himself up and bid Defiance to them all. Surely this is not to be endured, if it can possibly be avoided: Much less should first Principles of Common Law, Judgments and Determinations of the Common Law Courts and Courts of Chancery also, be set at Nought and disregarded in Order to subject Creditors to fo great an Evil.

It has been objected, that, if the whole Estate in the Land is in the Mortgagee in Fee, all after Deeds of Conveyance of the Land, made by the Mortgagor, must be void and ineffectual to pass the Land to the Purchaser or give him any Estate in it, and all such Purchasers must lose the Land they have paid their Money for, and supposed they held in Fee Simple.

This was said without due Consideration, — for, although Nothing doth, in Fact, pass by such after Deed, but ye Mortgagor’s Right of Redemption, yet, as between the Grantor and Grantee, it is a good Grant of the Inheritance. It enables the Purchaser to redeem the Land, obtain Possession thereof and a Release of the Mortgagee’s Right and Interest in and unto the same. By the Mortgagee’s releasing to the Purchaser in adual Possession of the Land, the Estate which the Mortgagee had in the Land passes to the Purchaser, and he thereby becomes seised in Fee of the Land.

If the second Deed be made before the Time appointed in the Mortgage Deed for the Payment of the Money, and the Money is paid at the Day, and the Mortgagee acknowledges the Payment thereof on y° Record, that, by the Prov. Law 9 W. , c. 8, discharges the Mortgage and bars all Action thereon, (6) fo that neither the Mortgagee, his Heirs or can demand or recover the Land; and the Estate in Fee which he had in the Land passes to the Purchaser with the Land, or revests in the Mortgagor : If it passes to the Purchaser, he has it directly: — If it revest in the Mortgagor, his second Deed estops him and his Heirs from demanding the same; for, as between the Parties to that Deed, it is a Conveyance of the Inheritance, and the Grantor and his Heirs, at least, are estopped to say the Contrary; and the Purchaser being in Possession of the Land, and the second Deed being acknowledged and registered, the original Mortgagor cannot grant or convey the Land to another; and so the Purchaser will thereby be quieted in the Possession of the Land, and it will descend from him to his Heirs, as an Inheritance.

Such Purchasers, therefore, are in no Danger of losing their Estates by the Court’s determining, that a Mortgagee in Fee has an Estate in Fee in the Land mortgaged, as not only the Common Law Courts, but also the Courts of Equity have before done.

Note.

The foregoing opinion is by Judge Trowbridge, the original MS. in his handwriting, though without title, having been found among his law papers, to which the editor was allowed access by the kindness of E. T. Dana, Esq. The same point was decided in Symes v. Hill, ante, 318, and, among John Adams’s papers, we find minutes of this opinion, and of the arguments of counsel, under the joint title “ Symes vs. Hill, & Hooton vs. Grout”—suggesting the probability that both cases were argued together, fo far as they were supposed to depend on this question of the liability of mortgaged estates to attachment. But it would seem that the latter case must have been in fact decided on the first point raised by the Special verdict, — viz., the effect of the leaving the assignment for record, — as the only other ground for judgment for the defendant would have been that the estate of a mortgagee was not attachable. Such we might have thought the decision in the case, overruling Symes v. Hill, and that this opinion of Trowbridge was a dissenting one, but for the facts above mentioned tending to show that the cases were argued together and that this opinion was the result, although the point was necessarily decided in the case of Symes v. Hill alone.

The law in this commonwealth has long been settled in opposition to the doctrine here laid down. 13 Mass. 207. 16 Mass. 345. 3 Pick. 484. Another opinion upon the same point by Judge Trowbridge, of which the original also remains among his papers, is published in the supplement to 8 Mass. 551.

Anc. Chart. 292.

lb. 423.

lb. 501.

5 (5) Anc. Chart. 324.

Ane. Chart. 304.