Dec. 1823. Clark V. Henry. (a) Goodman v. Grierson, 2 Ball & Beatty, gage from Davis unproductive, the appellant would have ALBANY, been without remedy. A personal obligation to pay is of the essence of a mortgage. The transaction between these parties was a mere accord and satisfaction for the debt. Where the grantee of lands subject to a limited power of redemption, has not all the remedies of a mortgagee, the conveyance is not a mortgage but a limited sale. Therefore, where lands were conveyed in lieu and satisfaction of a portion charged on them, with a clause of redemption if the portion were paid in ten years, there being no covenant for the payment of the portion, nor any collateral security, a redemption was refused after ten years; for, if the produce of a sale of the lands were insufficient to discharge the portion, the grantee could have no remedy against the grantor, to recover the deficiency.(a) The fair criterion, in Equity, to determine whether a deed be a mortgage or not, is, are the remedies mutual and reciprocal ?(b) Has the grantee all the remedies that a mortgagee is entitled to? This is like a lottery or insurance transaction. A discouut is allowed by way of premium, and the assignment is without re course. 274. Mad Ventr. 352..1 Mad. Ch. 27,8, and the cases there cited. Skinner v. 2 John. Ch. Rep. 535, per Kent, Ch. Skinner v. Dayton, 17 John. Rep. 365, per Spencer, C. J. id. 369, per J. S. A. Foot, for the respondent, stated the following points: 1. The Court of Chancery will always relieve against a forfeiture, or loss, resulting from the non-payment of money Yates, on the day, if compensation can be made; and interest of Manlove the money is always held to be an adequate compensa- 84. Ball, 2 Vern. tion.(c) 2. An absolute conveyance of real or personal property, with an agreement to re-convey in case a sum of money is paid by a certain day, is a mortgage.(d) 3. Every conveyance of real and personal property, made with a view to secure a debt, is a mortgage-and it will be so regarded in Equity if the object of the conveyance is made out by parol or written evidence. The facts in this case show, that the object of the assignment of the note and mortgage, was to secure the $225 due to Clark.(e) 4. Any agreement made at the time, or subsequent to the giving of a mortgage without any new consideration, tending to embarrass or defeat the right of redemption after V. 2 (d) Dey v. v. Clark, 15 V. Ball & Bruton, 2 Vern. 84. 1 Eq. Cas. Abr. 313, S. C. (e) 1 Pow. on Mort. 156 to 154. 1 Mad. Ch.414 to 418, and the cases cited by these authorities respectively. ALBANY, Clark V. Henry. (f) Id. forfeiture of the mortgage, is held in Equity to be illegal, oppressive and void.(ƒ) 5. The conduct of Clarke merits the adjudication of costs against him. He remarked, that in Dunham v. Dey, the defeasance was executed more than a year after the deed, yet holden a mortgage. Hopkins, in reply said, no attempt is made to answer the appellant's point grounded on the statute of frauds. A seal(g) Vid. Gil- ed instrument cannot thus be defeated by parol.(g) Nor lespy v. Moon, has the objection, that an agreement in restraint of the right 2 John. Ch. Rep. 590, and to redeem is void, any application to this case. arg. Here never the cases there cited by Riggs was any right to redeem. The assignment was absolute & Mitchell, from the nature of the transaction. The debt was destroyed at the moment of its execution and all collateral remedy gone. Suppose the mortgage had turned out to be not worth five straws-we never could have recovered the balance, of Henry. It was a mere conditional sale, within the case from Ball & Beatty, and the condition precedent not being performed, we are under no obligation to re-convey. Bill. Answer. Halsted's evidence. WOODWORTH, J. The bill states that at the time the assigument was made, the appellant declared it was by way of pledge, and that the instrument in writing delivered to the respondent was an agreement to re-deliver the mortgage on payment of $225. In the answer, the appellant alleges, it was an absolute sale and transfer, but he admits that he agreed to re-sell and re-assign, if the respondent paid $225, on or before the first of October, then next; that he wrote and signed an instrument to that effect. William Halstead, a subscribing witness, testifies, that Clark gave Henry a writing, which specified, that if Henry paid the money by the first of October, he was to re-assign ; if not, Clark was to hold the mortgage. This does not vary materially from the writing stated in the answer. There is no magic in the words "agreeing to sell the mortgage,” to distinguish the case from an agreement to re-assign. Halsted is not contradicted as to the fact, that the assignment was received as a security. Dec. 1823. Clark V. There is proof that, afterwards, the respondent admitted ALBANY, it was a sale, and the appellant admitted it was a security. Without reference to the construction which the law would put on the transaction, I am satisfied, that, at the time, neither party considered the assignment an absolute sale. If it was not, the respondent had a right to redeem and is not barred by non-payment at the day. The case warrants the inference, that Clark supposed the papers were so drawn as to defeat the right of redemption, if there was a failure of payment, and that the word " "sell" was inserted, instead of the more appropriate term re-assign, so as thereby to obtain a mortgage of $1065, for the inadequate consideration of $225. Henry. Parties under stood it to be a mortgage. Clark sup posed there was a clause of redemption. The whole operation, seems to be devised for the pur- Operation was pose of overreaching an ignorant man who could neither to read nor write. overreach an ignorant man. There cannot, however, be any doubt, that the writing Writing was a executed by the appellant was per se a defeasance merely. defeasance. On what terms was the appellant to sell? Not for the value of the security, but the amount of the original debt not equal to one-fourth of the mortgage. This speaks a language not to be mistaken. The instrument must be constructed as a covenant to re-assign. Right to redeem, carefully protected. Once a mort gage always a The right to redeem is carefully protected by Courts of Equity. They will not suffer an agreement to prevail, that the estate shall become an absolute purchase in the mortgagee, upon any event whatever. The reason of the rule is, because it puts the borrower too much in the power of the lender, who being distressed at the time is generally too much inclined to submit to any terms. There is no exception to the rule, "once a mortgage, and always a mortgage." (1 Mad. 413) No agreement of the parties can affect mortgage. the doctrine as to redemption in a Court of Equity. In Seton v. Slade, (7 Ves. Jun. 273,) Ld. Eldon observes, ። you shall not by special terms, alter what this Court says are the special terms of that contract." I refer to the following cases which fully support these principles. 2 Cha. Ca. 58, 159, 147. Toomes v. Conset, 3 Atk. 261: 1 Vern. 8, 33. Floyer v. Livingston, 1 P. Wms. 268. ALBANY, Clark V. Henry. Notice to Davis. Absolute deed, with written or parol is a The respondent in April, 1821, gave notice to Davis that he should look to him, and forbade his making payment to Clark. In May following, Davis made a settlement with Clark, and accepted a discharge. He appears to have been fully apprised of the circumstances, and took upon himself the risk of being answerable to the respondent. He cannot justly complain, in being made liable for the balance that may remain due after execution against the appellant shall have been executed and exhausted. I am of opinion, that the decree of his Honor, the Chancellor, be affirmed. SUTHERLAND, J. concurred. SAVAGE, Ch. J. (after stating the facts.) I concur fully in the opinion given by his Honor, the Chancellor. The assignment was intended merely as a security, and not as an absolute sale. Such was the understanding of the witness, Halstead, and such is the reasonable construction upon the acts of the parties. That a deed, absolute on its face, but accompanied by an defea- agreement, in writing or by parol, operating as a defeasance, is a mere mortgage, is perfectly well settled. (Dey v. Dunham, 2 John. Ch. Rep. 189. Paterson v. Clark, 15 John. Rep. 205.) sance, mortgage. No agree absolute deed. The character of the transaction between the parties being established, the rights of mortgagor and mortgagee are easily ascertained. It is a well settled principle, that Chancery will not sufment allowed fer any agreement in a mortgage to prevail, which shall to change mortgage into change it into an absolute conveyance upon any condition or event whatever. (Howard v. Harris, 1 Vern. 190. James Once a mort- V. Oades, 2 id. 402.) "Once a mortgage, always a mortgage always a gage." In Newcomb v. Bonhan, (1 Vern. 7,) where an abmortgage. solute conveyance was given, with a defeasance upon payment of £1000, during the life of the grantor, and the grantor covenanted, that it should never be redeemed after his death; yet redemption was decreed. The respondent was, in this case, clearly entitled to redeem; and the decree of the Chancellor should be affirmed. This being the unanimous opinion of the Court, it was thereupon ORDERED, ADJUDGED AND DECREED, that the decree of his Honor, the Chancellor, made in this cause, be in all things affirmed; and that the appellant pay to the respondent his costs in this Court, to be taxed; and that the record and proceedings, &c., be remitted, &c. ALBANY, Wilkes V. Lion. CHARLES WILKES and THE PRESIDENT, DIRECTORS, AND COMPANY OF THE BANK OF NEW YORK, plaintiffs in error. against EDWARD LION, ex dem. MEDCEF EDEN and JOHN WOOD; otherwise called JOHN WOOD, JUNIOR, assignee of MED. CEF EDEN, defendant in error. E. died in September, 1798, having, by his last will, dated August 29, 1798; devised lands to his son Joseph, in fee; and other lands to his son Medcef, in fee; and added, "It is my will, and I do order and appoint, that if either of my said sons should depart this life, without lawful issue, his share or part shall go to the survivor; and, in case of both their deaths, without lawful issue, then I give all the property, &c. to my brother John E. of, &c. and sister Hannah J. of, &c. and their heirs." Joseph, one of the sons, died in August, 1812, without lawful issue, leaving his brother M. surviving, who afterwards died on the 26th July, 1819, with out lawful issue: Held, that on the death of the testator's son Joseph, the limitation over, which was good as an executory devise, vested in M. the surviving son: And per Sanford, Chancellor, concurring with the Court below, the devise in his favor, having taken effect, ceased to be executory, and he became seised in fee tail, by necessary implication of law, with a remainder expectant in favor of John E. and Hannah J. the brother and sister of the testator; and by virtue of the statute of the 23d of February, 1786, abolishing estates tail, M. became seised, in fee simple absolute, of all the estate devised to his brother Joseph. But per Cramer, Senator, the devise to John F. and Hannah J. was origi nally limited upon too remote a contingency, to wit, an indefinite failure of issue in the two previous devisees. This not being qualified, like the VOL. II. 43 |