payment of a pre-existing debt is not sufficient. (Dickerson v. Tillinghast, 4 Paige, 215.) The analogous cases of the assignee of negotiable paper for valuable consideration, without notice of a prior equity, throw light on the subject. In those cases it has uniformly been held that there must be a parting with a new consideration, by such assignee or purchaser, a giving up of some other security, or devesting himself of some right, or placing himself in a worse situation than he would been in if he had received notice of the prior equitable title or lien, previous to his purchase, in order to constitute him a bona fide purchaser for a valuable consideration, within the meaning of the rule. The leading cases on the subject in our higher courts are Coddington v. Bay, (20 John. 637 ;) Stalker v. McDonald, (6 Hill, 93;) Harris v. Norton, (16 Barb. 264.)

The term "purchaser," as used in the statute, embraces every person to whom any estate or interest in real estate shall be conveyed for a valuable consideration, and also every assignee of a mortgage or lease, or other conditional estate. (1 R. S. 762, §§ 37 and 38.) Hence a mortgagee is brought within the term, contrary to the decisions under the former law. (Berry v. Mutual Ins. Co. 2 John. Ch. 603.)

Under the former law the recording acts did not apply to the assigument of a mortgage; and no notice of the assignment, actual or constructive, was necessary to protect the assignee of the mortgage against a subsequent assignee or against other persons claiming under the assignee. The rights of the parties in this respect depended upon the rule existing before the recording acts. That rule was that the first grantee or assignee of an interest in real estate was entitled to a preference, whether the subsequent assignee or purchaser had or had not notice of the prior assignment or grant. The revised statutes, above referred to, have extended the benefit of the recording acts, by embracing under the term purchasers parties not formerly included in it. (Vanderkemp v. Skelton, 11 Paige, 37. The N. Y. Life Ins. and Trust Co. v. Smith, 2 Barb. Ch. 82.)

The statute requires that to entitle conveyances to be recorded. they should be acknowledged by the parties executing the same, or be proved by a subscribing witness thereto. [See Appendix for act, 3 R. S. 46, § 4, 5th ed. et seq. for the list of persons before whom a deed or mortgage can be proved or acknowledged.] The officer taking the acknowledgment is required to know or to have satisfactory evidence that the person making such acknowledgment is the indi

vidual described in and who executed such conveyance. (1 R. S. 758, § 9.) The acknowledgment of a married woman residing within this state, to a conveyance purporting to be executed by her, cannot be taken unless in addition to the requisites above, she acknowledge on a private examination apart from her husband, that she executed such conveyance freely and without any fear or compulsion of her husband; and no estate of any such married woman can pass by any conveyance not so acknowledged. (Id. § 10.) But when a married woman, not residing in this state, joins with her husband in any conveyance of any real estate situated within this state, the conveyance has the same effect as if she were sole; and the acknowledgment or proof of the execution of such conveyance by her may be the same as if she were sole. (Id. § 11.)

When the proof of the execution of a conveyance is made by a subscribing witness, such witness is required to state not only his own residence, but also that he knew the person described in and who executed the conveyance. This proof cannot be taken unless the officer by whom it is taken is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person, who was a subscribing witness to such instrument. (Id. § 12. Jackson v. Osborn, 2 Wend. 555. Same v. Gould, 7 id. 364.) The object of these provisions is to prevent, as far as practicable, the fraudulent personation of one person for another. [For form of certificate of proof and acknowledgment, see Appendix.]

It would seem to follow from the foregoing that a mortgage must be either acknowledged by the mortgagor, before a proper officer, or be attested at the time of its execution, by one or more subscribing witnesses, by whom it can be proved, in order to its being recorded. But the statute concerning the alienation by deed, which will be noticed more at large elsewhere, while abolishing the mode of conveying lands by feoffment with livery of seisin, enacts that every grant in fee, or of a freehold estate, shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery according to the provisions of the act we have been considering, its execution and delivery shall be attested by at least one witness; or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so acknowledged. (1 R. S. 738, §§ 136. 137.) The purchasers here referred to, are such as are subsequent to the execution of the unacknowledged conveyance. It is

valid between the parties, and as to prior purchasers or incumbrancers, though it be neither acknowledged before the proper officer, or attested by a subscribing witness. (Wood v. Chapin, 3 Kern. 509. Voorhes v. Presb. Ch. Amsterdam, 17 Barb. 103.)

A mortgage not registered has a preference over a subsequent judgment docketed; but should the land be sold by the sheriff under the judgment prior to the registry of the mortgage, a bona fide purchaser at the sheriff's sale would be protected against the mortgage. (Jackson v. Dubois, 4 John. 216.)

The bona fide mortgagor of a fraudulent grantee, whose mortgage is recorded before a sheriff's deed obtained by a creditor of the grantor, on a judgment rendered after the recording of the fraudulent deed, is entitled to a preference. (Ledyard v. Butler, 9 Paige, 132.)

There is a controlling equity in favor of the claim of the vendor of lands for the purchase money, over that of any creditor of the vendee. This equity is recognized and enforced by the statute which provides that whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time, to secure the payment of the purchase money or any part thereof, such mortgage shall be preferred to any previous judgment which may have been obtained against the purchaser. (1 R. S. 749, § 5.) Literally, this applies only to a mortgage given by the purchaser to the vendor. But should a third person, by agreement between the parties, advance the money, and the mortgage be given directly to him, it comes within the equity of the statute, and such mortgagor is entitled to the same preference over a prior judgment as the vendor of the land would have had, had the mortgage been executed to him. (Jackson v. Austin, 15 John. 477.)

It is on this principle of an instantaneous seisin of the vendee, in cases where a mortgage is given back for the purchase money, that the widow of the vendee is not, in such cases, entitled to dower. (Stow v. Tifft, 15 John. 458.)

On this subject it has been held as a rule of presumption, that where upon the purchase of land, a deed is executed by the vendor, and a mortgage upon the land purchased is executed by the purchaser, and both conveyances are acknowledged and recorded at the same time, the presumption is that they were executed simultaneously, and that the mortgage was intended to secure the purchase money, although given to a third person instead of the vendor, by the direction of the latter. (Cunningham v. Knight,1 Barb. S. C. R. 399.)

SECTION III.

Of the rights and interest of the parties at law and in equity, and of certain incidents of the estate.

The English doctrine with respect to mortgages has been very greatly departed from in this state. In England it is laid down by Mr. Cruise that upon the execution of the conveyance by which a mortgage is created, the legal estate of freehold and inheritance, or the legal estate of the term of years created by the mortgage, becomes immediately vested in the mortgagee. A clause, it is said, is usually inserted in the mortgage deed, that until default is made in payment of the mortgage money and the interest, the mortgagor shall retain the possession and receive the rents. He thus becomes, in some respects, a tenant at will of the mortgagee; and when the proviso is that the mortgagor shall continue in possession, for the number of years given for the repayment of the mortgage money, he will be tenant for years of the mortgagee.

A different doctrine has long prevailed in this state. With us it has been well settled from an early day, that the mortgagee has a mere chattel interest; and that the mortgagor is considered as the proprietor of the freehold. The mortgage is deemed a mere incident to the bond or personal security for the debt; and the assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered in law as a nullity. (Jackson v. Bronson, 19 John. 325.) This doctrine was carried out to its consequences in Runyan v. Mersereau, (11 John. 534,) where it was decided that the mortgagor or a purchaser of the equity of redemption may maintain trespass against the mortgagee, or a person acting under his license. These cases do not rest upon any stipulation in the mortgage deed reserving the possession to the mortgagor until default, as no such stipulation is usually inserted in our mortgages. The doctrine rests upon the general principle which has already been elsewhere adverted to, that a mortgage is merely a security for the debt, and that the mortgagee has no interest in the land, but only a lien upon it; the mortgagor being the legal owner. (Hitchcock v. Harrington, 6 John. 290. Coles v. Coles, 15, id. 319. Aymar v. Bill, 5 John. Ch. 570. Morris v. Mowatt, 2 Paige, 586.

Astor v. Miller, Id. 68. Same v. Hoyt, 5 Wend. 602. Waring v. Smyth, 2 Barb. Ch. 119. Dickinson v. Jackson, 6 Cowen, 147.) With us, too, it is unnecessary that the mortgage should contain a stipulation for the possession by the mortgagor of the lands mortgaged until default; and no reconveyance is required to be given by the mortgagee on receiving payment of the money due, though such payment be not made at the day. (Waring v. Smyth, supra.) The mortgagee, or his assigns or representatives, can no longer bring ejectment for the recovery of the possession of the mortgaged premises. (2 R. S. 312, § 57.) He may indeed take possession of the land with the assent of the mortgagor, after the debt has become due and payable, and retain such possession until the debt is paid. (Waring v. Smyth, supra.)

Whether the mortgagee could maintain an action of waste against the mortgagor in possession, under any circumstances, has been litigated in our courts. In Peterson v. Clark, (15 John. 205,) it was held that such action could not be maintained, at least until after a forfeiture of the mortgage. They considered his interest as contingent until breach of the condition, and in case timber was cut down by the mortgagor, without special authority, the mortgagee had no such interest as to enable him to bring trover for the trees. This case does not settle the right to the action for waste committed after the forfeiture of the mortgage. That question arose in Southworth v. Van Pelt, (3 Barb. S. C. R. 347,) under circumstances favorable to the plaintiff. The premises had become forfeited and a decree obtained for a foreclosure, and the mortgaged premises were a slender security for the debt. The action was upheld.

The nature of the estate of the mortgagee is such that his remedies at law for injury to the security are circumscribed. The mortgagee has neither jus in re, nor ad rem, but a mere security for his debt. The title to the land is still in the mortgagor. Nevertheless the law will, in some cases, give redress by an action, to a party whose lien by mortgage or judgment has been destroyed or impaired in value. It will do so when the injury was done fraudulently, but not when it results from mere negligence and want of due care and attention. (Gardner v. Heartt, 3 Denio, 234.)

The remedy in equity, both on the part of mortgagor and mortgagee, is in general the most appropriate and effective. When the mortgagee takes possession of the mortgaged premises before foreclos