■ The opinion of the court was.delivered by
Rogers, J.
This is an appeal from the decision of Justice Smith, in .the Circuit Court held for the county of Schuylkill. The single question is, whether the article of agreement between Jeremiah Reed and John Hughes, vested such an interest in the land claimed by the plaintiffs, as to make it liable to be levied on and sold by the sheriff for a debt due by Reed or his executors. The first point to which we must direct our attention-, is the nature pf the agreement; for it is contended, that'by the contract, Reed obtained an equitable interest, or estate, in the land itself. -Reed agreed to go bail for Hughes in a bond to Jacob Boyer, in the sum ' of eight hundred pounds. As an indemnity to Reed, the contract was made, in which Hughes agrees to deliver the title to the tract in dispute, into the possession of-Reed, as a pledge for his services in going bail, and nothing else. The title was to remain in the hands of Reed until the bond was paid, or other security given. The agreement further provides, that if Reed was compelled to pay the'bond when due, Plughes was. to pay any damage he might sustain; and that if he detained the title longer than Hughes offered to comply with the agreement, then Reed was, to pay all .the damage that Hughe's might sustain. One of the alternatives provided for has happened, for Reed has been compelled to. pay the eight hundred pounds for which he became security, and without question,, has a complete right of action against his principal. This is not denied; but it is contended, that they have mistaken their remedy. It will be remarked, the title only is deposited in the hands of Reed, and-we are not left to conjecture for what purpose, for the parties themselves expressly say, as apledgC'ánd nothing more, for Iris-services in going bail.. The possession of the land remains with' Hughes, with a right of lien’ in Reed. Reed does not, as in the case of a legal mortgage, obtain the legal title; but the title papers are merely deposited with him as an indemnity for any eventual loss he might sustain, by reason of his responsibility as bail. It is then an equitable mortgage, by deposite of title deeds, which may be created by parol, or by written agreement, as here, which'is the better and safer way, showing the nature and intent of the transaction. This, I believe, is no uncommon assurance in England, growing out of the equitable jurisdiction of the court, and relief is had in chancery. In [328]*328one respect it differs from a legal mortgage, where the remedy is by foreclosure and transfer of the title to the land mortgaged. In an equitable mortgage, the chancellor degrees a sale of the land -in payment of the debt; for it is but the security for the debt, and does not vest any interest, or estate, in the land itself. He cannot by any process obtain possession, for an ejectment will not lie as on a legal mortgage. In one sense, an equitable mortgagee may be said to have an-interest in the land.;- that is, he has a lien on the land as' a fund, for the payment of his debt. But a judgment creditor has precisely the same interest. The question then recurs, is this such an interest.as is the subject of execution? There would not, perhaps, be much difficulty in distinguishing an equitable from a. legal mortgage, as the legal mortgage is the absolute conveyance of the land, to be defeated on'payment of the money loaned at a day fixed by the parties, and vesting the legal estate in the mortgagee, eo instanti the d.eed is executed. Not so-in an equitable mortgage, for there the legál estate remains in the mortgagor; the land, whether at haw or in equity, being but a pledge for. the debt. As, however, doubts have been entertained, whether a mortgage be liable to execution, we would wish to be understood as deciding, that the legal and equitable mortgage,, so far as regards this question, fall within the same principle. A mortgage must be considered either as a chose in action, or as giving title to the lánd, and vesting a real interest in the mortgagee; In the latter case, it would be liable to execution; in the former, it would not, as it would fall within the same réasoii as a judgment bond, or simple contract. If we should consider the interest of the mortgagee as a real interest, we must carry the principle out, and subject it to dower, and to the lien of a judgment; the inconvenience of which, would have -been intolerable, particularly at a time, when by law, the mortgagee had six months to record his mortgage. The sá'me objections which may be urged against one judgment,-being a lien on another judgment, will apply with equal force to the doctrine, that a judgment is a lien on a mortgage. That a mortgage is but a chose in action, a mere evidence of debt, is apparent from the whole current of decisions. A devise of a man’s personal, estate, carries with‘it all his mortgages. A mortgage may be released by an instrument not under seal, and an assignment of the bond, which usually accompanies the mortgage, transfers the right to the mortgage itself; for whatever will give the money secured by the mortgage, will carry the mortgaged premises along with it. The forgiving, the debt, although' by parol, will draw the land after it as a consequence. The whole result of the cases is, that a mortgage, although in -form a conveyance of land, is in substance but a security for the payment of money; and the debt being paid, or in any -manner extinguished, the mortgagee becomes a trustee for the mortgagor’. In consequence of the want of a Court of Chancery, our law differs from the law of England; for in England a judgment only binds a legal interest; in Pennsylvania, a [329]*329legal and an equitable interest. In England, the relief is in chancery; but here, we enforce payment by the common law process of execution; and, hence, under, the construction of the act of 1705, for taking lands in execution for payment of debts, an. equitable as well as a legal title to land, has been considered, as subject to. the lien of $ judgment. The extent of the decisions in Pennsylvania, and this will be found, upon a critical ■ examination of all the cases, is to subject to execution all possible- contingent titles in land, accompanied with an estate, property, or real interest in the land, whether that interest be legal or equitable. And for the soundness of this position, I refer generally, to the Lessee of Humphreys et al. v. Humphreys, 1 Yeates, 429, Shaupe v. Shaupe, 12. Serg. & Rawle, 12, and to Streaper v. Fisher et al., 1 Rawle, 162. The doubt, whether mortgages are the subject, of execution, does .'not seem to be peculiar to Pennsylvania, for in Blanchard v. Colbitrn and wife, 16 Mass. Rep. 346; the Supreme Court of Massachusetts have ruled, ^That lands mortgaged, cannot be levied upon' for the debt of the mortgagee, unless he' shall have first entered ' on the land.” And in Jackson ex dem. Norton and Burt v. Willard, 4 Johns. 41, the Supreme Court of New York have gone still further, and have decided, “That lands mortgaged cannot be sold on execution against- the mortgagee, before a foreclosure of the equity of redemption, though the debt be due, and the estate of the mortgagee has become absolute at law.” Without undertaking to mark the extent of the doctrine in Pennsylvania,
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■ The opinion of the court was.delivered by
Rogers, J.
This is an appeal from the decision of Justice Smith, in .the Circuit Court held for the county of Schuylkill. The single question is, whether the article of agreement between Jeremiah Reed and John Hughes, vested such an interest in the land claimed by the plaintiffs, as to make it liable to be levied on and sold by the sheriff for a debt due by Reed or his executors. The first point to which we must direct our attention-, is the nature pf the agreement; for it is contended, that'by the contract, Reed obtained an equitable interest, or estate, in the land itself. -Reed agreed to go bail for Hughes in a bond to Jacob Boyer, in the sum ' of eight hundred pounds. As an indemnity to Reed, the contract was made, in which Hughes agrees to deliver the title to the tract in dispute, into the possession of-Reed, as a pledge for his services in going bail, and nothing else. The title was to remain in the hands of Reed until the bond was paid, or other security given. The agreement further provides, that if Reed was compelled to pay the'bond when due, Plughes was. to pay any damage he might sustain; and that if he detained the title longer than Hughes offered to comply with the agreement, then Reed was, to pay all .the damage that Hughe's might sustain. One of the alternatives provided for has happened, for Reed has been compelled to. pay the eight hundred pounds for which he became security, and without question,, has a complete right of action against his principal. This is not denied; but it is contended, that they have mistaken their remedy. It will be remarked, the title only is deposited in the hands of Reed, and-we are not left to conjecture for what purpose, for the parties themselves expressly say, as apledgC'ánd nothing more, for Iris-services in going bail.. The possession of the land remains with' Hughes, with a right of lien’ in Reed. Reed does not, as in the case of a legal mortgage, obtain the legal title; but the title papers are merely deposited with him as an indemnity for any eventual loss he might sustain, by reason of his responsibility as bail. It is then an equitable mortgage, by deposite of title deeds, which may be created by parol, or by written agreement, as here, which'is the better and safer way, showing the nature and intent of the transaction. This, I believe, is no uncommon assurance in England, growing out of the equitable jurisdiction of the court, and relief is had in chancery. In [328]*328one respect it differs from a legal mortgage, where the remedy is by foreclosure and transfer of the title to the land mortgaged. In an equitable mortgage, the chancellor degrees a sale of the land -in payment of the debt; for it is but the security for the debt, and does not vest any interest, or estate, in the land itself. He cannot by any process obtain possession, for an ejectment will not lie as on a legal mortgage. In one sense, an equitable mortgagee may be said to have an-interest in the land.;- that is, he has a lien on the land as' a fund, for the payment of his debt. But a judgment creditor has precisely the same interest. The question then recurs, is this such an interest.as is the subject of execution? There would not, perhaps, be much difficulty in distinguishing an equitable from a. legal mortgage, as the legal mortgage is the absolute conveyance of the land, to be defeated on'payment of the money loaned at a day fixed by the parties, and vesting the legal estate in the mortgagee, eo instanti the d.eed is executed. Not so-in an equitable mortgage, for there the legál estate remains in the mortgagor; the land, whether at haw or in equity, being but a pledge for. the debt. As, however, doubts have been entertained, whether a mortgage be liable to execution, we would wish to be understood as deciding, that the legal and equitable mortgage,, so far as regards this question, fall within the same principle. A mortgage must be considered either as a chose in action, or as giving title to the lánd, and vesting a real interest in the mortgagee; In the latter case, it would be liable to execution; in the former, it would not, as it would fall within the same réasoii as a judgment bond, or simple contract. If we should consider the interest of the mortgagee as a real interest, we must carry the principle out, and subject it to dower, and to the lien of a judgment; the inconvenience of which, would have -been intolerable, particularly at a time, when by law, the mortgagee had six months to record his mortgage. The sá'me objections which may be urged against one judgment,-being a lien on another judgment, will apply with equal force to the doctrine, that a judgment is a lien on a mortgage. That a mortgage is but a chose in action, a mere evidence of debt, is apparent from the whole current of decisions. A devise of a man’s personal, estate, carries with‘it all his mortgages. A mortgage may be released by an instrument not under seal, and an assignment of the bond, which usually accompanies the mortgage, transfers the right to the mortgage itself; for whatever will give the money secured by the mortgage, will carry the mortgaged premises along with it. The forgiving, the debt, although' by parol, will draw the land after it as a consequence. The whole result of the cases is, that a mortgage, although in -form a conveyance of land, is in substance but a security for the payment of money; and the debt being paid, or in any -manner extinguished, the mortgagee becomes a trustee for the mortgagor’. In consequence of the want of a Court of Chancery, our law differs from the law of England; for in England a judgment only binds a legal interest; in Pennsylvania, a [329]*329legal and an equitable interest. In England, the relief is in chancery; but here, we enforce payment by the common law process of execution; and, hence, under, the construction of the act of 1705, for taking lands in execution for payment of debts, an. equitable as well as a legal title to land, has been considered, as subject to. the lien of $ judgment. The extent of the decisions in Pennsylvania, and this will be found, upon a critical ■ examination of all the cases, is to subject to execution all possible- contingent titles in land, accompanied with an estate, property, or real interest in the land, whether that interest be legal or equitable. And for the soundness of this position, I refer generally, to the Lessee of Humphreys et al. v. Humphreys, 1 Yeates, 429, Shaupe v. Shaupe, 12. Serg. & Rawle, 12, and to Streaper v. Fisher et al., 1 Rawle, 162. The doubt, whether mortgages are the subject, of execution, does .'not seem to be peculiar to Pennsylvania, for in Blanchard v. Colbitrn and wife, 16 Mass. Rep. 346; the Supreme Court of Massachusetts have ruled, ^That lands mortgaged, cannot be levied upon' for the debt of the mortgagee, unless he' shall have first entered ' on the land.” And in Jackson ex dem. Norton and Burt v. Willard, 4 Johns. 41, the Supreme Court of New York have gone still further, and have decided, “That lands mortgaged cannot be sold on execution against- the mortgagee, before a foreclosure of the equity of redemption, though the debt be due, and the estate of the mortgagee has become absolute at law.” Without undertaking to mark the extent of the doctrine in Pennsylvania, I.agree with Chief Justice Parsons, “ That the diificulties o.f levying upon - lands mortgaged, are insuperable.” The debt may require only, a small part of the land to satisfy it, and- several executions may be 'levied by several persons. This would throw difficulties in the way of the mortgagee, who would be unable to determine the amount of ■these several interests, which would not be compensated by any-advantages which would attend the engrafting this new principle into the law of Pennsylvania, particularly when we consider the nice and intricate questions which would necessarily grow out of it. These diificulties have produced the almost univérsal opinion among the profession, that lands so situated, are not subject to the debts of ■ the mortgagee by execution; and, it is an argument of no inconsiderable weight, that although mortgages are securities of such common occurrence, this is the first attempt which has been .made to subject the interest of a mortgagee under a levy and execution.
The court are of the opinion, in which Judge Smith, concurs, that the.judgment be reversed, and a venire facias de novo awarded.
. Judgment reversed, and a venire facias de novo awarded.