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debtor and creditor did not exist in this case, and the conveyance was not made to secure the payment of a prior indebtedness, but in payment of the debt. (Id. And see remarks of Bronson, J. dis- · approving of Palmer v. Gurnsey, 7 Wend. 248.)

The assignment of a land contract for the security of a debt due to the assignee, upon the condition, that if the debt was paid at the time stipulated, the assignee would reassign the interest, was held to be, in equity, a mortgage, and that the assignor had the right of redemption. (Brockway v. Wells, 1 Paige, 617.)

So also, in another case, where A. assigned the mortgage of a third person to B. as security for a less sum than the amount due thereon, with power to collect such sum, covenanting that it was due, and that such third person would pay it by a certain day, it was held to be a mortgage only. (Slee v. Manhattan Co. 1 Paige, 48.)

So when a sealed instrument, executed in 1809, granting land for the term of one year on rent, and conditioned to be void on payment of a certain sum, and with a covenant on the part of the grantor to pay it at the end of the year, it was held to be valid as a mortgage. (Elliott v. Pell, 1 Paige, 263.)

How far a deed absolute in its terms may be shown by parol evidence to have been intended as a mortgage, has led to contradictory decisions. In this state such evidence has been uniformly held admissible in courts of equity. In Webb v. Rice, (6 Hill, 219,) reversing the same case in 1 Hill, 606, the question arose in an action of ejectment, and it was held by the court of errors that such evidence was inadmissible in a court of law to show that a deed, absolute on its face, was intended as a mortgage. Whether such evidence was admissible in a court of equity, under any circumstances, did not become a question.

That decision, so far as it could be construed as affecting the admissibility of such evidence in a court of equity, was in conflict with the uniform course of the decisions in this state, and of some elsewhere. (Strong v. Trustees of Mitchell, 4 John. Ch. 167. Marks v. Pell, 1 id. 594. Clark v. Henry, 2 Cowen, 234. Dey v. Dunham, 2 John. Ch. 189. Peterson v. Clark, 15 John. 205. Gilchrist v. Cunningham, 8 Wend. 641. Yarborough v. Newell, 10 Yerger, 376. Whitbeck v. Kane, 1 Paige, 202. Slee v. Manhattan Company, 1 id. 48. Van Buren v. Olmstead, 5 id. 9. Lansing v. Russell, 3 Barb. Ch. 325. James v. Johnson, 6 John. Ch. 417. 3 Atk. 389. 2 id. 99. But see Cook v. Eaton, 16 Barb, 439, contra.)

The case of Webb v. Rice was decided in 1843. Since that time the jurisdiction in law and equity has been consolidated, and the former court of chancery abolished. But the court of appeals has steadily adhered to the well settled rule that a deed absolute upon its face may be shown by parol evidence to be a mortgage, notwithstanding the case of Webb v. Rice, (supra.) (Hodges v. The Tennessee M. and T. Ins. Co. 4 Selden, 416. Dobson v. Pearce, 2 Kernan, 156. Crary v. Goodman, Id. 266. Despard v. Walbridge, 1 Smith, 15 N. Y. Rep. 374. Chester v. Bank of Kingston, 2 id. 343.) All these latter cases arose since the case of Webb v. Rice, and since the adoption of the code of procedure. It is quite clear upon authority in this state, that the evidence is admissible, whether the action be such as was formerly called an action at law or an equitable action. There are a few other cases where the same principle prevails. Thus, a resulting trust may be proved by parol; (Bottsford v. Burr, 2 John. 409; Boyd v. McLean, 1 id. 582 ;) the fact that a joint maker of a bond or note was a surety; (Chester v. Bank of Kingston, supra;) that a deed or mortgage was given as a collateral security. (Id.)

With regard to the assignment of mortgages, it has been repeatedly held that as such assignment is not a conveyance of land within the meaning of the statute of frauds, it is equally effectual by a mere delivery, as by a written assignment under seal. (Runyan v. Messereau, 11 John. 534.) The debt is considered the principal, and the land as a mere incident. The assignment of the debt by parol, draws the land after it as a consequence.

But the assignee of a bond and mortgage takes them subject to all the equities of the original mortgagor, but not to the latent equity of a third person. (Murray v. Livingston, 2 John. Ch. 441. Livingston v. Dean, 2 id. 479. James v. Mowrey, 2 Cowen, 246. Pendleton v. Fay, 2 Paige, 202. Evertson v. Evertson, 5 id. 644. L'Amoreaux v. Vandenburgh, 7 id. 316. Evans v. Ellis, 5 Denio, 640; affirmed, Ellis v. Messerole, 11 Paige, 467.)

He cannot be protected in equity as a bona fide purchaser without notice, unless he has acquired the legal as well as the equitable title; and if he purchased from a fraudulent holder, he can be protected only to the value of the property, or the amount of the money paid for it. (Peabody v. Fenton, 3 Barb. Ch. 451.) The assignee of the assignee of a mortgage takes only the title of his assignor, whatever it may be. (Sweet v. Van Wyck, Id. 647.) .


The courts will protect the rights of a party who has made advances in good faith upon the credit of a security to be assigned to him. Where a mortgagor applied to a third person for an advance of money to enable him to take up his mortgage, promising to give him the same security for such money as the mortgagee then held, and upon receiving the money, paid it to the mortgagee and took an assignment of the mortgage from him to such third person, it was held that the mortgage was not discharged, and that the assignee was entitled to hold the same as a security for the money thus advanced. (White v. Knapp, 8 Paige, 173.)

The deposit of title deeds by way of security for money advanced gives to the party an equitable lien in the premises by way of mortgage. (Per Sutherland, J., Jackson v. Parkhurst, 4 Wend. 369.) Such lien cannot, however, be set up at law as a legal estate. (Jackson v. Dunlap, 1 John. Cas. 114. Same v. Phipps, 12 John. 418.)

The lien of the vendor for the purchase money is analogous to an equitable mortgage. When the vendor delivers possession of an estate to a purchaser, without receiving the purchase money, equity, whether the estate be or be not conveyed, and although there was no special agreement for that purpose, gives the vendor a lien on the land for the money. (Sugden on Vend. 857. Garson v. Green, 1 John. Ch. 308. Clark v. Hall, 7 Paige, 382.) The purchase money is prima facie a lien, and it lies on the vendee, or his heirs, to show that the vendee agreed to rest on other security. It is not devested by taking the vendee's negotiable note for the same. (Garson v. Green, supra.) Taking the note of a third person, not as security but as payment of a part of the purchase money, does not affect the lien for the residue. (Hallock v. Smith, 3 Barb. 267.) It exists against subsequent purchasers and incumbrancers, when they advance no new consideration, or have notice. (Id.) It is superior to the lien of a prior judgment against the vendee. (Arnold v. Patrick, 6 Paige, 310.)

The principles of equity do not require that this lien for the purchase money should be upheld further than as against the vendee and his heirs, or volunteers, or purchasers with notice of the lien. It should be defeated by an alienation to a bona fide purchaser without notice. (Bagley v. Greenleaf, 7 Wheaton, 46.)

The principle on which the doctrine rests is, that the vendee on the sale of real estate becomes the trustee of the vendor for the purchase money, or of such portion of it as remains unpaid, and the vendor is the trustee of the purchaser for the land. (Watson v. Le Row, 6 Barb. 484. Swartout v. Burr, 1 ib. 495, 499. Champion v. Brown, 6 John. Ch. 402, 3.) But a subsequent purchaser from the vendor in possession, advancing a full consideration, and having no notice of the equitable lien of the first vendee, has a better equity than the latter, who by neglecting to consummate his purchase by an actual change of possession, has enabled his vendor to perpetrate a fraud.

Formerly, if a judgment debtor was in possession of land at the time of the sale thereof on an execution against him, he was estopped from denying that he had any interest in the land. The bare possession was an interest which might be sold on execution, and the purchaser acquired the same interest which the defendant in the execution had, and no more. If the latter was a mere tenant at will, or by sufferance, or even was in possession without color of right, the purchaser, as against him and those claiming under him, had a right to be substituted in his place, so far as respected the possession and any legal rights of the defendant connected therewith. (Talbor v. Chamberlin, 3 Paige, 220. Jackson v. Graham, 3 Caines, 188. Same v. Parker, 9 Cowen, 84. Grosvenor v. Allen, 9 Paige, 76. Griffin v. Spencer, 6 Hill, 525. Watson v. Le Row, 6 Barb. 484.) But the revised statutes (1 R. S. 744, § 4) have so far changed the rule in this respect, that the interest of a party holding a contract for the purchase of land cannot be barred by the docketing of a judgment or decree, nor be sold by execution upon such judgment or decree. This interest, whatever it is, can now be only reached by a bill in equity, and can thus be sold and transferred to the purchaser upon such terms as the court shall deem most conducive to the interest of the parties. (1 R. S. 744, SS 4, 5.) Neither an estate at will or by sufferance, or the interest in a contract for the purchase of land, can be sold on execution. (1 R. S. 723; 744, SS 4, 5. Moyer v. Hinman, 17 Barb. 137. Bigelow v. Finch, Id. 394. Mead v. Gregg, 12 id. 653.)

When several equities affect the same estate, it is a familiar principle in equity jurisprudence, if they be otherwise equal, they will attach upon the estate according to the periods at which they commenced; for it is a maxim of equity as well as of law, qui prior est tempore, potior est jure. (Berry v. Mut. Ins. Co. 2 John. Ch. 608. Watson v. Le Row, 6 Barb. 485. Lynch v. Mut. Ins. Co. 18 Wend. 253. Grosvenor v. Allen, 9 Paige, 76, 77.)

Where lands are contracted to be sold, and the purchaser contracts to sell a part of such lands, the residue is the primary fund for the payment of the original purchase money; and if the original purchaser transfers different parcels, they are chargeable in the inverse order of sale. (Crafts v. Aspinwall, 2 Comst. 289.)

We have hitherto spoken of mortgages in fee, which are of the most frequent occurrence in this state. But a mortgage may be given of an estate for years, and thus convey to the mortgagee only an interest in a chattel real. In the English books it is said that in the case of mortgages for terms for years, if the money is not paid on the day appointed, the estate becomes absolutely vested at law in the mortgagee for the residue of the term. And though a court of equity allows the mortgagor to redeem, within a reasonable time, by paying the principal, interest and costs, yet such payment only gives the mortgagor an equitable right to the term. (Cruise's Dig. title 15, Mortgages, ch. 1, § 16 to 19.) It was also supposed that mortgages for years were attended with this advantage, that on the death of the mortgagee, the term and the right to receive the mortgage debt vested in the same person; whereas in the case of a mortgage in fee, the estate, on the death of the mortgagee went to the heir or devisee; and the money was payable to his executor or administrator. (Id.) In this state, these consequences do not follow,

The statute with regard to the recording of mortgages and the power of sale and foreclosure makes no distinction between mortgages in fee and mortgages for term of years. In both cases the money received by the mortgagee goes to the executors or administrators and not to the heir, (See as to recording, &c. 1 R. S. 756; as to assets, 2 id. 83.) With us, too, the mortgagor is deemed seised, and is the legal owner of the land as to all persons except the mortgagee. Indeed, he may maintain trespass against the mortgagee, or a person acting under his license. (Runyan v. Mersereau, 11 John. 534. Hitchcock v. Harrington, 6 id. 290. Coles v. Coles, 15 id. 313.) The mortgagor is, for every substantial purpose, the real owner of the land, and the mortgagee has merely a lien upon it. (Astor v, Miller, 2 Paige, 68. Astor v. Hoyt, 5 Wend. 602.) The mortgage is a mere security for the debt; and the only right the mortgagee now has in the land itself, is to take possession thereof, with the assent of the mortgagor, after the debt has become due and payable, and to retain such possession until the debt is paid. (Waring v. Smyth, 2 Barb. Ch. 119.) An outstanding mortgage is not a breach of the

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