death. As early as the time of Glanville, these just and plain principles of the law of pledges were essentially recognised; and it was declared, that if the pledge was not redeemed by the time appointed, the creditor might have recourse to the law, and compel the pawnor to redeem by a given day, or be forever foreclosed and barred of his right. And if no time of redemption was fixed, the creditor might call upon the debtor at any time, by legal process, to redeem or lose his pledge." The distinction between a pawn and mortgage of chattels is equally well settled in the English and in the American law; and a mortgage of goods differs from a pledge or pawn in this, that the former is a conveyance of the title upon condition, and it becomes an absolute interest at law, if not redeemed by a given time, and it may be valid in certain cases without actual delivery. According to the civil law, a pledge *139 could not be sold without judicial sanction, unless there was a special agreement to this effect; and this is, doubtless, the law at this day in most parts of Europe. The French Civil Code has adopted the law of Constantine, by which even an agreement at the time. of the original contract of loan, that if the debtor did not pay at the day, the pledge should be absolutely forfeited, and become the property of the debtor, was de • Bro. Abr. tit. Pledges, pl. 20, tit. Trespass, pl. 271. Burnet, J., in Ryall v. Rowley, 2 Ves. 358, 359. Mores v. Gorham, Owen's Rep. 123. Ratcliff v. Davis, 1 Bulst. 29. Cro. Jac. 244. Yelv. 178, S. C. Com. Dig. tit. Mortgage by Pledge of Goods, b. Demaudray v. Metcalf, Prec. in Ch. 419. Vanderzee v. Willis, 3 Bro. 21. Perry v. Craig, 3 Missouri Rep. 516. Glanville, lib. 10, c. 6. 8. The Master of the Rolls, in Jones v. Smith, 2 Ves. jr. 378. Powell on Mortgages, 3. Barrow v. Paxton, 5 Johns. Rep. 258. Brown v. Bement, 8 ibid. 96. M'Lean v. Walker, 10 ibid. 471. Garlick v. James, 12 ibid. 146. Wilde, J., in 2 Pick. 610. Haven v. Law, 2 N. H. Rep. 13. De Lisle v. Priestman, 1 Brown's Penn. Rep. 176. Langdon v. Buel, 9 Wendell, 80. Gifford v. Ford, 5 Vermont Rep. 532. clared to be void. While on this subject of pledges, it may be proper further to observe, that the pawnee, by bill in chancery, may bar the debtor's right of redemption, and have the chattel sold. This has frequently been done in the case of stock, bonds, plate, or other personal property pledged for the payment of debt." But without any bill to redeem, the creditor, on a pledge or mortgage of chattels, may sell at auction, on giving reasonable opportunity to the debtor to redeem, and apprizing him of the time and place of sale; and this is the more convenient and usual practice. While the debtor's right in the pledge remains unextinguished, his interest is liable to be sold on execution; and the purchaser, like any other purchaser or assignee of the interest of the pawnor, succeeds to all his rights, and becomes entitled to redeem.d *140 *The law of pledges shows an accurate and refined sense of justice; and the wisdom of the provisions by which the interests of the debtor and creditor are equally guarded, is to be traced to the Roman law, and shines with almost equal advantage, and with the most attractive simplicity, in the pages of Glanville. It forms a striking contrast to the common law mortgage of the freehold, which was a feoffment upon condition, or the creation of a base or determinable fee, Perezius on a Inst. lib. 2, tit. 8, sec. 1. Vinii Com. h. t. Code 8. 35. 3. the Code, vol. ii. 62, tit. 34, sec. 4, 5, p. 63, sec. 8. Bell's Com. on the Law of Scotland, vol ii. 22, 5th ed. Merlin's Repertoire, art. Gage. Code Civil, art. 2078. Institutes of the Laws of Holland, by J. Vander Linden, translated by J. Henry, Esq., 180. Kemp v. Westbrook, 1 Ves. 278. Demaudray v. Metcalf, Prec. in Ch. 419. Vanderzee v. Willis, 3 Bro. 21. • Tucker v. Wilson, 1 P. Wms. 261. 1 Bro. P. C. 494, edit. 1784. Lockwood v. Ewer, 2 Atk. 303. Hart v. Ten Eyck, 2 Johns. Ch. Rep. 100. Johnson v. Varnon, 1 Bailey's S. C. Rep. 527. Perry v. Graig, 3 Missouri Rep. 516. See supra, vol. ii. 582. Kemp v. Westbrook, 1 Ves. 278. New-York Revised Statutes, vol. ii. 366, sec. 20. See supra, vol. ii. 577-585, on the doctrine of pledging. with a right of reverter attached to it. The legal estate vested immediately in the feoffee, and a mere right of re-entry, upon performance of the condition, by payment of the debt strictly at the day, remained with the mortgagor and his heirs, and which right of entry was neither alienable nor devisable. If the mortgagor was in default, the condition was forfeited, and the estate became absolute in the mortgagee, without the right or the hope of redemption. So rigorous a doctrine, and productive of such forbidding, and, as it eventually proved, of such intolerable injustice, naturally led to exact and scrupulous regulations concerning the time, mode, and manner of performing the condition, and they became all important to the mortgagor. The tender of the debt was required to be at the time and place prescribed; and if there was no place mentioned in the contract, the mortgagor was bound to seek the mortgagee, and a tender upon the land was not sufficient. If there was no time of payment mentioned, the mortgagor had his whole lifetime to pay, unless he was quickened by a demand; but if he died before the payment, the heir could not tender, and save the forfeiture, because the time was past. If, however, the money was declared to be payable by the mortgagor, or his heirs, then the tender might be made by them at any time indefinitely after the mortgagor's death, unless the performance was hastened by request; and if a time for payment was fixed, and the mortgagor died in the mean time, his heir might redeem, though he was not mentioned, for he had an interest in the condition. *If *141 the representatives of the mortgagee were mentioned in the feoffment, whether they were heirs, execu a Litt. sec. 332. b Co. Litt. 210, b. < Litt. sec. 337. The Lord Cromwell's case, 2 Co. 79. Litt. sec. 334. Co. Litt. 208, b. tors, or assignees, the payment could rightfully be made to either of them." (3.) The defeasance. The condition, upon which the land is conveyed, is usually inserted in the deed of conveyance, but the defeasance may be contained in a separate instrument; and if the deed be absolute in the first instance, and the defeasance be executed subsequently, it will relate back to the date of the principal deed, and connect itself with it, so as to render it a security in the nature of a mortgage. The essence of the defeasance is that it defeats the principal deed, and makes it void if the condition be performed. In order, however, to render the deed a security against subsequent purchasers and mortgagees, it is necessary that the deed and defeasance should be recorded together. An omission to have the defeasance registered, would operate to make the estate, which was conditional between the parties absolute against every person but the original parties and their heirs.b a Goodell's case, 5 Co. 95. Co. Litt. 210. This case of Goodell, and Wade's case, 5 Co. 114, are samples of the discussions on what was, in the time of Lord Coke, a very momentous question, whether the absolute forfeiture of the estate had or had not been incurred by reason of non-payment at the day. Such a question, which would now be only material as to the costs, was in one of those cases decided, on error from the K. B., after argument and debate by all the judges of England. b Dey v. Dunham, 2 Johns. Ch. Rep. 182. New-York Revised Statutes, vol. i. 756. Harrison v. the Trustees of Phillips' Academy, 12 Mass. Rep. 456. Blaney v. Bearce, 2 Greenleaf, 132. Wright v. Bates, 13 Vermont Rep. 341. The words of the New-York statute are, that if a deed appears, by a separate instrument, to have been intended as a mortgage, it shall be deemed a mortgage; and the grantee shall not derive any advantage from the recording of it, unless the defeasance be also recorded, and at the same time. In Pennsylvania, upon a similar point, it has been decided, that if the separate defeasance be not recorded, the absolute deed is to be considered as an unrecorded mortgage, and postponed, according to the rule in that state in such cases, to a subsequent judgment creditor. Friedley v. Hamilton, 17 Serg. & Rawle, 70. The practice of placing the conveyance in fee and the condition or defeasance which is to *142 qualify it, in separate instruments, is liable to accidents and abuse, and may be productive of injury to the mortgagor; and the court of chancery has frequently, and very properly, discouraged such transactions. This must more especially be productive of hazard to the rights of the mortgagor, in those states where the powers of a court of equity are very sparingly conferred, and where the character of an instrument of defeasance is to be determined upon the strict technical principles of the common law, and must take effect concurrently with the deed, as part of the one and the same transaction.b In equity, the character of the conveyance is determined by the clear and certain intention of the parties; and any agreement in the deed, or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the repayment of money, will make it such, and give to the mortgagor the right of redemption. A deed, absolute on the face of с * Lord Talbot, in Cotterell v. Purchase, Cases temp. Talbot, 89. Baker v. Wind, 1 Ves. 160. In New-Hampshire this evil is guarded against by statute of July 3d, 1829, which declared that no estate in fee should be defeated or encumbered by any agreement or writing of defeasance, unless the same be inserted in the conveyance as part thereof. But though such an absolute deed accompanied with a bond to reconvey on payment of a loan, be void as against the creditors of the grantor, yet the agreement constitutes a secret trust, which might perhaps be enforced in equity as between the parties. Tifft v. Walker, 10 N. H. Rep. 150. b Lund v. Lund, 1 let v. Otis, ibid. 167. Brown, 4 ibid. 443. Burt, 7 Pink. 157. N. H. Rep. 39. Bickford . Daniels, 2 ibid. 71. Run- Kelleran v. Newhall v. • Taylor v. Weld, 5 Mass. Rep. 109. Cary v. Rawson, 8 ibid. 159. Wharf v. Howell, 5 Binney, 499. Menude v. Delaire, 2 Desaus. 564. Reed v. Landale, Hardin, 6. James v. Morey, 2 Cowen's Rep. 246. Anon. 2 Hayw. 26. Dabney v. Green, 4 Hen. & Munf. 101. Thompson v. Davenport, 1 Wash. Rep. 125. Hughes v. Edwards, 9 Wheat. Rep. 489. |