Hosmer, Ch. J
That the mortgage in question, on the facts offered to be proved, was utterly void in respect of creditors, has not been questioned, nor is it questionable. The precise enquiry is, whether these facts may be proved on a hill of foreclosure ; or whether the plaintiff will be left to pursue legal means in a court of law to establish his title. The defendants insist, that the defence is admissible against the bill of foreclosure; and the plaintiff, that it is no defence here, but that the point, by our jurisprudence, is confined to the law courts.
The argument of the defendants has principally been founded on the law as established in other countries and states, where the diversities on the subject of mortgages between them and us, in many particulars, are numerous and great; and where on foreclosure, the land mortgaged is not only decreed to be sold, a proceeding never admitted here, but the possession is enforced to the purchaser. There, the bill of foreclosure is [153]*153considered as a proceeding in rem; (Kershaw v. Thompson & al 4 Johns Chan. Rep. 609. and the cases there cited;) and the doctrine of enforcing a delivery of the possession to the purchaser under a decree, is carried so far, that it is done not only when specially decreed, but on motion, when the decree on this subject is silent. The effect of this doctrine on the jurisdiction and enquiries of the court, is obvious ; and it is necessarily different from the law established here, where the proceeding is not in rem, as has often been determined, and will be shewn hereafter, and where there is no sale of the mortgaged premises, nor possession enforced.
The ground on which this case has been decided by the court, renders it both unnecessary and improper to investigate the laws of other countries, or to pursue the train of the counsel for the defendants. The court consider the law of Connecticut, long and frequently established, and without any diversity of opinon, as having conclusively settled this point, that on a hill of foreclosure, the title of the mortgagee cannot-be investigated ; but that he will be left to pursue legal means to establish it. At the same time, I remark, that of all the cases cited by the defendants, there is hut one that appears to be in point; and that is De Butts v. Bacon & al. 6 Cranch 252. This case was brought before the supreme court of the United States, on error, from the circuit court of the district of Columbia. It was a bill of foreclosure ; and the defence was a plea of usury. The circuit court adjudged the contract to be usurious, and decreed it to be void. The case, most probably, was decided on the local law of the state in which the decision was made. In all events, the grounds of determination, and even the arguments of counsel, are all in the dark. The opinion and act of the court is expressed in these few words : “ Which decree, this court, after argument, by Swann for the appellant, and Youngs for the appellees, affirmed.” No person can more highly respect the decisions of this court, than I do. They are to be considered as precedents, in all those cases, where an ultimate jurisdiction is given them over the determinations of the state courts ; and in all their proceedings, both at law and in chancery, are justly entitled to high deference. But when their decisions are founded on the local law of another state, they can have no application here ; and when they are based on the principles of the common law or of equity, if without argument of counsel or the citation of a case, [154]*154or the reasons of the court, I cannot receive them as evidence of the law. The submitting of the mind to the arguments of men of great learning, talent and respectability, is rational ; but to the mere ipse dixit of any one, such submission is servile.
In all the other cases cited for the defendants, an answer shewing their inapplicability, might easily be given ; but as the decision of the case before us, founded on our own law, puts them out of the question, I feel myself neither called on to discuss, nor justified in discussing, them.
The court have assumed two principles as the basis of their determination; that is, that the question between the parties relates to the legal title of the plaintiff; and that by our law, on a bill of foreclosure, it is not the subject of enquiry.
1. If the facts offered in evidence, by the defendants, are sustained, they show the mortgage deed, as against creditors, to be utterly void. This proposition has not been questioned ; nor is it questionable. On the contrary, it has been insisted on, in the argument, that a determination between the parties on the point of title, is a conclusive bar to any suit at law.
Had the defendants conceded, that the title at law is valid, but that in equity the plaintiff cannot prevail, for want ol equitable title, it would present a different question. Saunders v. Dehew, 2 Vern. 271. 2 Pow on Mart. 1646. The principle is familiar, and does not require a reference to cases. A court of chancery will leave a person to his remedy at law, if there is injustice or even hardship, in its interference. But the specific objection made in this case, is, that the plaintiff* has no legal title ; in other words, that his mortgage, in respect of creditors, is a nullity everywhere.
2 The question then arises, whether by the established law of Connecticut, the legal title, on a bill of foreclosure, is, or is not, a subject of enquiry. The object of investigation, it must be remembered, is not what ought to be the law of the state. This would lead to an examination and discussion of principles. But it is, whether on this subject, the law has, in fact, been settled ; and if so, what that fact is.
As far back as the year 1796, in the 2nd volume of his “ System of the Laws of Connecticut,” (p. 439.) it is said, by Judge Swift, “ That on a bill of foreclosure, the title of the mortgagee cannot be investigated ; but he will be left to pursue legal measures to establish it.” In 1803, the superior court. [155]*155consisting of sis judges, on a bill of foreclosure, brought by jEbenezer Hayden against John Belden, on solemn argument, determined to the same effect. The same court, in 1807, in the c.ise of . Owen v. Granger, 2 Day 477. again decided, “That the legal title cannot be drawn in question, on a bill to foreclose.” No etermination at variance with those 1 have cited, is even suggested to have taken place ; and on this subject, from an ea ly period of my practice, 1 have considered the law as settled. In Swift’s Digest, vol. 2. p. 197. first published in 1823, nearly thirty year3 after he had reported the law on the point in question, the same author recites the expression taken from his System, “ That on a bill of foreclqsure, the title of the mortgagee cannot be investigated ; but he will be left to pursue the legal measures to establish it.” He then adds: “ Of course, it is not necessary that it shofild be brought in the county where the land lies. All the question that can arise, is, whether the mortgage deed has been properly executed : the validity of the title must be decided at law, and not in chancery.” Thus far the author must be considered as declaring what the established law of Connecticut is.
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Hosmer, Ch. J
That the mortgage in question, on the facts offered to be proved, was utterly void in respect of creditors, has not been questioned, nor is it questionable. The precise enquiry is, whether these facts may be proved on a hill of foreclosure ; or whether the plaintiff will be left to pursue legal means in a court of law to establish his title. The defendants insist, that the defence is admissible against the bill of foreclosure; and the plaintiff, that it is no defence here, but that the point, by our jurisprudence, is confined to the law courts.
The argument of the defendants has principally been founded on the law as established in other countries and states, where the diversities on the subject of mortgages between them and us, in many particulars, are numerous and great; and where on foreclosure, the land mortgaged is not only decreed to be sold, a proceeding never admitted here, but the possession is enforced to the purchaser. There, the bill of foreclosure is [153]*153considered as a proceeding in rem; (Kershaw v. Thompson & al 4 Johns Chan. Rep. 609. and the cases there cited;) and the doctrine of enforcing a delivery of the possession to the purchaser under a decree, is carried so far, that it is done not only when specially decreed, but on motion, when the decree on this subject is silent. The effect of this doctrine on the jurisdiction and enquiries of the court, is obvious ; and it is necessarily different from the law established here, where the proceeding is not in rem, as has often been determined, and will be shewn hereafter, and where there is no sale of the mortgaged premises, nor possession enforced.
The ground on which this case has been decided by the court, renders it both unnecessary and improper to investigate the laws of other countries, or to pursue the train of the counsel for the defendants. The court consider the law of Connecticut, long and frequently established, and without any diversity of opinon, as having conclusively settled this point, that on a hill of foreclosure, the title of the mortgagee cannot-be investigated ; but that he will be left to pursue legal means to establish it. At the same time, I remark, that of all the cases cited by the defendants, there is hut one that appears to be in point; and that is De Butts v. Bacon & al. 6 Cranch 252. This case was brought before the supreme court of the United States, on error, from the circuit court of the district of Columbia. It was a bill of foreclosure ; and the defence was a plea of usury. The circuit court adjudged the contract to be usurious, and decreed it to be void. The case, most probably, was decided on the local law of the state in which the decision was made. In all events, the grounds of determination, and even the arguments of counsel, are all in the dark. The opinion and act of the court is expressed in these few words : “ Which decree, this court, after argument, by Swann for the appellant, and Youngs for the appellees, affirmed.” No person can more highly respect the decisions of this court, than I do. They are to be considered as precedents, in all those cases, where an ultimate jurisdiction is given them over the determinations of the state courts ; and in all their proceedings, both at law and in chancery, are justly entitled to high deference. But when their decisions are founded on the local law of another state, they can have no application here ; and when they are based on the principles of the common law or of equity, if without argument of counsel or the citation of a case, [154]*154or the reasons of the court, I cannot receive them as evidence of the law. The submitting of the mind to the arguments of men of great learning, talent and respectability, is rational ; but to the mere ipse dixit of any one, such submission is servile.
In all the other cases cited for the defendants, an answer shewing their inapplicability, might easily be given ; but as the decision of the case before us, founded on our own law, puts them out of the question, I feel myself neither called on to discuss, nor justified in discussing, them.
The court have assumed two principles as the basis of their determination; that is, that the question between the parties relates to the legal title of the plaintiff; and that by our law, on a bill of foreclosure, it is not the subject of enquiry.
1. If the facts offered in evidence, by the defendants, are sustained, they show the mortgage deed, as against creditors, to be utterly void. This proposition has not been questioned ; nor is it questionable. On the contrary, it has been insisted on, in the argument, that a determination between the parties on the point of title, is a conclusive bar to any suit at law.
Had the defendants conceded, that the title at law is valid, but that in equity the plaintiff cannot prevail, for want ol equitable title, it would present a different question. Saunders v. Dehew, 2 Vern. 271. 2 Pow on Mart. 1646. The principle is familiar, and does not require a reference to cases. A court of chancery will leave a person to his remedy at law, if there is injustice or even hardship, in its interference. But the specific objection made in this case, is, that the plaintiff* has no legal title ; in other words, that his mortgage, in respect of creditors, is a nullity everywhere.
2 The question then arises, whether by the established law of Connecticut, the legal title, on a bill of foreclosure, is, or is not, a subject of enquiry. The object of investigation, it must be remembered, is not what ought to be the law of the state. This would lead to an examination and discussion of principles. But it is, whether on this subject, the law has, in fact, been settled ; and if so, what that fact is.
As far back as the year 1796, in the 2nd volume of his “ System of the Laws of Connecticut,” (p. 439.) it is said, by Judge Swift, “ That on a bill of foreclosure, the title of the mortgagee cannot be investigated ; but he will be left to pursue legal measures to establish it.” In 1803, the superior court. [155]*155consisting of sis judges, on a bill of foreclosure, brought by jEbenezer Hayden against John Belden, on solemn argument, determined to the same effect. The same court, in 1807, in the c.ise of . Owen v. Granger, 2 Day 477. again decided, “That the legal title cannot be drawn in question, on a bill to foreclose.” No etermination at variance with those 1 have cited, is even suggested to have taken place ; and on this subject, from an ea ly period of my practice, 1 have considered the law as settled. In Swift’s Digest, vol. 2. p. 197. first published in 1823, nearly thirty year3 after he had reported the law on the point in question, the same author recites the expression taken from his System, “ That on a bill of foreclqsure, the title of the mortgagee cannot be investigated ; but he will be left to pursue the legal measures to establish it.” He then adds: “ Of course, it is not necessary that it shofild be brought in the county where the land lies. All the question that can arise, is, whether the mortgage deed has been properly executed : the validity of the title must be decided at law, and not in chancery.” Thus far the author must be considered as declaring what the established law of Connecticut is. His competency as a witness to the fact in question, will not be controverted, when it is recollected, that he had compiled a system of the laws of this state, as early as the year 1796, in which he stated the established law then as he afterwards did in his Digest; that he was appointed a judge of the superior court in 1801, and continued on the bench eighteen years, where he had a peculiar opportunity of being acquainted with the practice ; and that, undoubtedly, he was one of the judges, who declared the law in Hayden v Belden and Owen v. Granger.
To the law as before recited Judge Swift subjoined this observation : “ Where the obligation secured by the mortgage is void, by the statute of usury, this will constitute a defence against a bill to foreclose ;” and for this law he cited 3 Atk 154. It is obvious to every person, who hears the successive passages recited, that the established law of Connecticut was declared, until the last sentence referring to Atkyns. This change of subject in the Digest, from the law of Connecticut to the chancery law and common law of England, is observable on many of his pages, and with no other notice than by a reference to some authority. There is recollected no determination in this state, that usury is a defence to a bill of foreclosure, by the invalidation of the mortgage ; nor has it been pretended. When [156]*156therefore, the law is supposed, by Judge Swift, to be founded on p16 authority of a decision, made by Lord Hardioiche, and reported by Atkyns; and when he had, a few sentences before, down the Jaw of this state, in the most sweeping terms, and declared, that the only question in our courts, is, whether the mortgage deed has been properly executed ; and that the validity of the title must be decided at law, and not in chancery ; it would be unreasonable to infer, that the judge, in the sentence last cited, had reference to any subject but the English law.
Although it is unnecessary, I will remark en passant, that the case referred to by judge Swift, in Atkyns, was neither a bill of foreclosure, nor bearing any relation, even in the remotest degree, to the question before the Court.
It is a provision of statute law, that all suits brought for the trial of the title of land, or wherein the title of land is concerned, shall be tried in the same county where the land lies, or facts are done concerning which the title of land may he in question. Such suits are local, and must be brought in the county where the land is situated. Thus, the action of trespass quare clausum fregit is as much local as an action of disseisin is, although in the former the title of land is never necessarily in controversy. 1 Swift’s Dig. 594. But as it may he controverted, this gives locality to the suit. Now, if on a bill of foreclosure, the title of the mortgagee may he brought into dispute, it clearly is as much a local action as is trespass quare clausum fregit or ejectment. The principle has always been admitted ; but on the ground that the title cannot be in question on a bill of foreclosure, it is established law, that it may be brought in one county when the land mortgaged lies in another. 2 Swift’s Dig. 197. In the case of Broome v. Beers, 6 Conn. Rep. 198., it was recently decided, by this Court, that the title of land was not in question on a bill of foreclosure, and that it need not be brought in the county in which the land lies. It was said, by one of the judges, there being perfect unanimity on this point, that “ the title of land is not in question ; and such suits have always been considered transitory.” 6 Conn. Rep. 215.
It was suggested in the argument of this case, that the statute giving locality to suits, which may involve the title to land, was alone applicable to actions at law. To this observation the answer is without difficulty. In the first place, our courts, without exception, have been of an opposite opinion. It has [157]*157ever been considered, that the statute, either in its expression, or in its reason and spirit, was equally applicable to suits in chancery and at law. in the Digest of Judge Swift, ivol. 2.p. 197.) he takes it for granted, and assigns as the reason why a bill of foreclosure may be brought in a county where the lands are not situated, that the title cannot be investigated. “ Of course,” says he, “ it is not necessary that it should be brought in the county where the land lies clearly implying, that it the title might be questioned, the bill must be instituted there. In Broome v Beers, 6 Conn Rep 204. the learned counsel for the defendant in error, evidently proceeded in their argument on this ground. “ The bill,” say they, “was brought in the proper county. Local actions are those in w hich the title to land maybe determined ; but on a bill of foreclosure the title is not in controversy.” The same idea was adopted by the Court, and the suit was decided to be transitory. A second reply to the observation that the statute giving locality to certain suits is inapplicable to bills in chancery, is equally conclusive. In all the cases cited, the court declare, that the title is not in question. It is, therefore, of no importance, whether the statute is, or is not, applicable. Let it be admitted, that it is not. The opinion of the court alluded to, deprives the remark, in this case, of all its intended force.
It was argued at the bar, that after foreclosure, the title of the mortgagee would be strengthened ; and that for this reason, the point ought to be decided on the plaintiff’s bill. I reply to this remark, that no additional strength is, or can be, given to a title, by a decree, which takes away the equity of redemption only, and in a suit, where the title cannot be, and is not, investigated ; and when the enquiry concerning it is referred exclusively to a court of law.
It has likewise been insisted, that a bill of foreclosure must aver a title to the land mortgaged ; and hence, that it must be proved. To this I answer, that in bills of this description, the only necessary averment on this point, is, that the defendant executed a deed on condition. 2 Swift’s Dig. 656. Hence, as has justly been observed, by Judge Swift, “ all the question that can arise, is, whether the mortgage deed has been properly executed.” 2 Swift’s Dig. 197. Of consequence, if the execution of the deed is not proved by two witnesses : or if it was forged ; or if it was obtained by duress, or by fraud ; or if it was executed by a feme covert: in these and similar cases, it [158]*158is no deed, and an indispensable averment of the bill is without support.
From the particulars disclosed 1 consider the fact to be unquestionably proved, that by the law of this state, the legal title of the plaintiff, on a bill of foreclosure, is never the subject of enquiry, but that the point is within the exclusive jurisdiction of the courts of law. And as no decision in opposition to this principle has been referred to, it is a fair inference that none exists.
To authorize the adoption of a new rule in annihilation of the former, uniformly recognized and acted on, for more than thirty years, and probably beyon I the memory of any living practitioner at I he bar, some pointed injustice and overwhelming mischief should be made to appear. Rut what is the mischief ; what the injustice? The plaintiff must establish a title, and the defendant may question it, in every possible mode. This, however, must be done in a court of law; and is this an objection ? Is not a court of this description as competent to decide on a legal title as a court of chancery is ?
There is not in the common law a maxim more eminently just, and promotive of the public convenience, than that of stare decisis. It was once said, by Mr. Justice Potcell, emphatically, “ Nothing is law that is not reason —“ a maxim,” observed that eminent lawyer and scholar, Sir William Jones, “ in theory excellent, but in practice dangerous, as many rules, true in the abstract, are false in the concrete ; for since the reason of Titi .s may, and frequently does, differ from the reason of Septimius, no man, who is not a lawyer, would, in many instances, know what to advise, unless the courts were bound by authority, as pagan deities were supposed to be bound by the decrees of fate ” Jones on Bailment 84. Besides, if law well established may be annulled, by opinion, a foundation is laid for the most restless instability. The decisions of one court may be overruled by another court ; and those of the latter will only have a transient efficacy, until some future court, dissatisfied with them, shall substitute new principles in their place. No system of inflexible adherence to established law can be as pernicious as such ceaseless and interminable fluctuations.
Brainard and Lanman, Js., were of the same opinion.