other things, the whole of a debtor's lands may be taken, instead of the half as formerly, and a registration of judgments is provided whereby purchasers can ascertain whether any such existing liens are outstanding upon the lands they are about to purchase.1 It seems, however, to be unnecessary, in a work like this, to occupy space with a detail of English statutes upon a matter which, from its nature, must be regulated wholly by statute here as well as there. It is only proposed, therefore, to present an outline of the system of applying the lands of debtors in satisfaction of their debts by the forms of law, as it now or lately prevailed in the several States, remarking that it has always been in accordance with the spirit of the American law to place within the power of the creditor the means of reaching both the real and personal estate of his debtor. If property be sold upon execution issued upon a judgment regularly rendered by a court having jurisdiction of the parties and matter at interest, the same will pass a good and indefeasible title to the same, although the judgment may subsequently be reversed.2 The selling personal estate at auction, and apprais * ing of real estate, rents, and rights to redeem, is said [*464] to have had its origin wholly in the colony of Massachusetts Bay. And the act of 1647 is cited as the original statute upon the subject. There was also an early provincial act, 1692, charging the lands of debtors with the payment of their debts. In selling a debtor's equity of redemption upon execution, the sheriff acts in place of the debtor, and cannot therefore sell it to debtor's wife, any more than the debtor himself could.5 NOTE. In all the States the legal interest of every judgment debtor in real estate may be seized and levied on execution; as well as in most of them, his equitable title. This remedy, as has been remarked, was unknown at the 1 Wms. Real Prop. 66-70; 2 Flint. Real Prop. 245-250. 2 Gordon v. Canal Co., 17 Am. Law Reg. 282; Gray v. Brignordello, 1 Wall. 627; Parker v. Anderson, 5 T. B. Munroe, 445, where the sale was made under a decree of a court of chancery. 3 5 Dane, Abr. 22. 4 Col Laws, 216 5 Stetson v. O'Sullivan, 8 Allen, 322. common law, and its existence depends in all cases upon positive statutes. The remedy given by the English law, however, by the writ of elegit, is still in use in Virginia and Delaware. In most of the States a lien is created on the real estate of the [*465] debtor by the *rendition or docketing of a judgment or final decree. There is a great diversity of practice in the different States in the method of levying execution upon real estate. In some of the States, moreover, the officer is required to divide the property, if susceptible of division, and sell only so much as will be sufficient to satisfy the execution in absence of any election by the debtor. In several of the States where land is sold on execution, the debtor [*469] is allowed a certain time after the levy, in which he may redeem the land by payment of the purchase-money and a specified rate of interest. In a note to the former editions, the substance of many of these statutes was embodied. But since their publication, so much new matter of a less local interest has been accumulating by the decisions of the various courts upon questions relating to the law of Real Property as they have arisen, that, to prevent its swelling the work to an inconvenient size, it has been thought better to omit, in the present edition, this compendium of statutes, and supply its place by other and more important matter. SECT. 7. SECT. 8. Of Relief of the Real by the Personal Estate. SECT. 9. Of Accounting by the Mortgagee. 6 a. What may be mortgaged. 7. What constitutes a mortgage. 8. What constitutes a defeasance at common law. 9. How far an existing debt is necessary. 10. How far absolute deeds can be made mortgages by parol. 11. Of legal and equitable mortgages. 12. When an agreement must be made to create a mortgage. 13. What agreement sufficient in form to do this. 14, 15. Distinction between a mortgage and a right to repurchase. 16-18. When made to secure a loan, it is a mortgage. 19. A mortgage in express terms may not be controlled. 20. Tests whether it is a mortgage, or sale and right to repurchase. 21. To whom defeasance must be made. 22. Against whom parol defeasances, &c., will operate. 23. A deed once a mortgage, always such. 24. Of subsequent agreements between the parties. 25. Of right of sale and pre-emption by mortgage. 26. No agreement as to redemption, other than of law, good. 27. Priority of mortgage to secure purchase-money. 28. Mortgages to secure support, &c. 1. MORTGAGES are one form of lien upon real estate to secure the performance of some obligation, more commonly the payment of money. Other forms are seen in the right of a vendor to enforce the payment of the purchase-money for lands sold, out of the land itself, in payments charged upon land by a devise of the same by a testator's last will, in covenants running with land, and in judgment liens which exist in some States by force of statute. Besides these, there are liens created by statute in many of the States in favor of mechanics, for the payment of materials found and work done upon buildings. But while the subject of a vendor's lien will be resumed hereafter, it is not proposed to speak of the other classes of liens beyond mortgages in this chapter, except to refer to the cases below as examples of some of those above referred to.1 And one other preliminary remark may be proper, that, as ordinarily understood, a lien upon land does not imply an estate in it, but a mere right to have it, in some form, applied towards satisfying a claim upon it. The peculiarity of mortgages is that, while in some States they combine the character of lien and estate, in others they form a lien only upon the land.2 A mortgage at common law may be defined to be an estate created by a conveyance, absolute in its form, but intended to secure the performance of some act, such as the payment of money and the like, by the grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance. It is, therefore, an estate defeasible by the performance of a condition subsequent. The act which is to defeat the estate must, in order to constitute a 1 Swasey v. Little, 7 Pick. 296; Felch v. Taylor, 13 Pick. 133; Hiester v. Green, 48 Penn. St. 102; Heist v. Baker, 49 Penn. St. 9; Strauss' Appeal, 49 Penn. 353; Bouvier's Du Lien, 33-39. 2 Ryall v. Rolle, 1 Atk. 166. 8 Wms. Real Prop. 349; Erskine v. Townsend, 2 Mass. 493; Lund v. Lund, 1 N. H. 39; Mitchell v. Burnham, 44 Me. 299; N. H. Rev. Stat. c. 131, § 1; Wing v. Cooper, 37 Vt. 179. mortgage, be to be done by the grantor or his assigns. If, therefore, A convey to B, taking back from B a bond conditioned to support A, and, upon failure to do so, to convey the estate back to A, it was held not to be a mortgage, though it was the ground upon which a decree of specific performance might be based.1 In another case, however, A sold B an estate, and at the time of making the deed it was agreed in writing that A should retain possession till the purchasemoney was paid, and should give up possession upon the payment of the balance of the same. It was held to be a mortgage which A might foreclose against B.2 And in another case, A made a deed to B, and in it was inserted a condition that the deed was to be void if B failed to pay a certain sum of money agreeably to the terms of a bond then given by B to A. And A might enter and convey the premises to any person. It was held, the rights of the vendor and vendee were those of mortgagee and mortgagor, though it would seem to be an estate upon condition at the common law.3 But a mere bond or agreement to convey land will not constitute a mortgage, unless given in the way of defeasance.1 It does not, therefore, relate to the quantity of estate, but to its quality or circumstances which qualify the ownership and enjoyment of property. Though conditional in its character, it differs essentially from an estate upon condition at common law which was considered in a former chapter, both in its purposes and in many of its incidents. In respect to estates upon condition, the estate vests in the grantee, subject to be defeated; but until defeated by act of the grantor, the estate with the possession and the ordinary incidents of ownership are in the grantee. Whereas a mortgage only becomes effectually an estate in the grantee, called the mortgagee, by the grantor or mortgagor failing to perform the condition.5 The line of distinction which the law draws between an estate upon condition at common law and a mortgage may be illustrated by the case of Hancock v. Carlton, which has already 1 Robinson v. Robinson, 9 Gray, 447. 3 Knowlton v. Walker, 13 Wis. 265, 272. 2 Gibson ». Eller, 13 Ind. 125. 4 Dahl v. Pross, 6 Minn. 91; Drew v. Smith, 7 Minn. 307. Fay v. Cheney, 14 Pick. 399; Brigham v. Winchester, 1 Met. 390; Wood v. Trask, 7 Wis. 566. |