I. Definitions and Distinctions. his own demand, such conveyance is A. DEFINITIONS. 1. Mortgage. "A mortgage is the conveyance of an estate by way of pledge for the security of debt, and to become void on the payment of it. The legal ownership is vested in the creditor; but, in equity, the mortgagor remains the actual owner, until he is debarred by his own default, or by judicial decree." Kent Com., 135; Nease v. Capehart, W. Va. 95, 134. A mortgage is the conveyance of an estate, or pledge of property, as security for the payment of money, or the performance of some other act, and conditioned to become void upon such payment or performance. Sandusky v. Faris, 49 W. Va. 150, 174, 38 S. E. 563. A mortgage of lands is a conveyance of lands by a debtor to a creditor, as the security for the performance of a covenant, the payment of a debt, or the repayment of a sum of money borrowed with a proviso, that such conveyance shall be void, on the performance of the covenant by the time appointed, or the payment of the debt or money borrowed, and interest on a certain day. If this be not done, the conveyance becomes absolute at law, yet the mortgagor has an equity of redemption, that is, a right in equity on the performance of the agreement in a reasonable time to call for a reconveyance of the land. Davis v. Demming, 12 W. Va. 246, 280; Thacker v. Morris, 52 W. Va. 220, 43 S. E. 141. A mortgage is in form a conveyance of the conditional estate. Vangilder v. Hoffman, 22 W. Va. 1, 17. A conveyance to trustees to secure creditors, amongst whom are the trustees themselves, is, in legal effect, a mortgage, and the regular course of procedure is to file a bill in equity for its foreclosure. Morgan v. Glendy, 92 Va. 86, 22 S. E. 854. Where a conveyance of real estate is made to a creditor, in trust to satisfy A deed of trust in the nature of a mortgage, is a conveyance in trust by way of security, subject to a condition of defeasance, or redeemable at any time before the sale of the property. Sandusky v. Faris, 49 W. Va. 150, 174, 38 S. E. 563. A deed conveying land to a trustee as mere collateral security for the payment of a debt when due, and with power to the trustee to sell the land and pay the debt, in case of default on the part of the debtor, is a deed of trust in the nature of a mortgage. Sandusky v. Faris, 49 W. Va. 150, 174, 38 S. E. 563. A deed of trust, if not revocable by the grantor, is not to be considered a will in disguise, on the grounds that nearly all his personal estate is thereby conveyed, and that he reserves to himself the possession and control of the Lightfoot a property during his life. Colgin, 5 Munf. 42. As to whether a deed of trust is "at estate or title to property" within meaning of sole ownership clause in insurance policy, see the title FIRE INSURANCE, vol. 6, p. 79, et seq. B. DISTINCTIONS. 1. Mortgages Distinguished from Deeds of Trust. The most important distinction to be observed between a mortgage and a deed of trust is, that while foreclosure proceedings are necessary in case of a mortgage, the expense and trouble of this suit is entirely dispensed with in case of deeds of trust. This bill to foreclose the debtor's equity of re purpose of making a sale. Without express contract to the contrary, the trust debtor is entitled to the possession of the land down to the sale or commission of waste or to the beginning of proceedings to make the sale. Like a mortgage, the debt secured is the principal thing; hence it is "that the doctrines relating to the deed of trust are by text writers and by courts generally classified and explained under the head of mortgages.'" Swann v. Young, 36 W. Va. 57, 14 S. E. 426, 430. "The equitable ownership of the trust debtor is very often called an equity of redemption; but there are marked points of difference between it and the equity of redemption under a mortgage. In the case of the deed of trust there can be no forfeiture, and therefore, strictly speaking, no equity of redemption. None before the sale by the trustee, because it can not then arise; and, under our law, there is no such thing as an equity of redemption after sale. It is nothing more than the ordinary right of a debtor to pay his debt, which in this case is the discharge of a lien. So far as the sale by the trustee is concerned, it is an absolute sale to the highest bidder." Swann v. Young, 36 W. Va. 57, 14 S. E. 426, 430. Distinguished demption being a necessary preliminary property pending proceedings for the to the satisfaction of the mortgagee's debt, whether by quieting the latter in the unconditional enjoyment of the lands, according to the English practice, or by a sale and application of the proceeds, in pursuance of the usage in Virginia, the delay and expense thence arising have stimulated the ingenuity of modern times to frame a mode of conveyance, whereby the creditor may procure his principal and interest by a sale of the subject without being under the necessity of applying to a court of equity. This is done by taking a conveyance, not as in case of a mortgage, to the creditor himself, but to a third person as trustee, in trust upon default of payment at the time stipulated, to sell the land, and to apply the purchase money, after defraying the expenses incurred in discharging the trust, to pay the debt with interest, and the residue, if any, to pay to the debtor. 2 Min. Inst. (4th Ed.) 340; Ambler v. Warwick, 1 Leigh 195; Chowning v. Cox, 1 Rand. 306; Taylor v. King, 6 Munf. 358, 366; Gibson v. Jones, 5 Leigh 370; Shurtz v. Johnson, 28 Gratt. 657, 664. A trust debtor conveys his land to the trustee as a security for the payment of his debt, and with the power in the trustee, if it be not paid when due, to sell, and pay out of the proceeds. The trust creditor has not an estate upon condition like the old mortgagee in the time of Littleton. He has at no time by virtue of his deed of trust, an estate of any kind. He has a chose in action, made a specific lien by contract, and not by change of possession on a certain tract of land; and there never comes a time when he or his representative has more or other than that; nor has he, at any stage, the right to possession, unless it is expressly given to him by the deed, or a right to enter upon the land. The trustee has no right to the possession until default made in payment of the trust debt, and then only for the purpose of making the sale, or of preserving the 2. Mortgage from The difference ordinarily recognized between a mortgage and a pledge is that title is transferred by the former and possession by the latter. Neill v. Rogers Bros. Produce Co., 41 W. Va. 37, 23 S. E. 702. A mortgage is a pledge and more, for it is an absolute pledge, to become an absolute interest if not redeemed at a certain time; a pledge is a deposit of personal effects, not to be taken back but on payment of a certain sum, by express stipulation, or in the course of trade to be a lien on them. Surber v. McClintic, 10 W. Va. 236, 249. "A mortgage is in the common law distinguishable from a mere pawn. By a grant, or conveyance of goods in gage or mortgage, the whole legal title passes conditionally to the mortgagor; and if the goods are not redeemed at the time stipulated, the title becomes absolute at law, although equity will interfere to compel a redemption." Surber v. McClintic, 10 W. Va. 236, 242. See the title PLEDGE AND COLLATERAL SECURITY. such transaction is a conditional sale." Sadler v. Taylor, 49 W. Va. 104, 119, 38 S. E. 583. 4. Deed of Trust in Nature of Mortgage Distinguished from Assignment for Benefit of Creditors. "A distinction should be noted between unconditional deeds of trust to raise funds for the payment of debts, and deeds of trust in the nature of mortgages, the former being absolute 3. Mortgage Distinguished from Con- and indefeasible conveyances for the ditional Sale. The distinction between a mortgage and a conditional sale is, that a conditional sale is not a security for money, but a sale in good faith to be void upon the happening of a condition subsequent. A conditional sale not being a security for money there is no equity of redemption incident to it, and for this reason.courts of equity view transactions alleged to be conditional sales with disfavor; though if they are found to be bona fide conditional sales they will be upheld as such. Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 583; Davis v. Demming, 12 W. Va. 246; Chapman v. Turner, 1 Call 280; Robertson v. Campbell, 2 Call 421; Earp v. Boothe, 24 Gratt. 368. to a if A conditional sale with a right repurchase very nearly resembles mortgage. The distinction is, that the money advanced is not loaned, but the grantor has a right to refund it in a given time and have a reconveyance, if the debt remains, the transaction is a mortgage, otherwise not. Davis v. Demming, 12 W. Va. 246, 280; Thacker v. Morris, 52 W. Va. 220, 43 S. E. 141. See post, "Transactions Either Mortgages or Sales," VI. "The distinction between a mortgage and a conditional sale is that where money is not loaned but is advanced with an agreement that if it be repaid at a given time, the vendee will reconvey the land, and the whole transaction shows clearly that no debt really remained after the execution of the deed, purposes of the trust, while the latter are conveyances by way of security, subject to a condition of defeasance." Sandusky v. Faris, 49 W. Va. 150, 174, Loan, etc., Co., 52 W. Va. 655, 44 S. 38 S. E. 563; Snyder v. Middle States E. 250. When the grantor in a deed of trust conveys all his property to a trustee for the benefit of his creditors, with power to sell the same immediately, and authorizes the trustee, after paying the expenses of the trust and discharging the liens on the property, to make a pro rata distribution of the proceeds of the trust property among the grantor's creditors, and reconvey to him whatever may remain unsold in case the property shall be more than sufficient to pay all the debts, such deed is absolute, and the conveyance is to a trustee for the purpose of raising a fund with which to pay debts, as distinguished from a deed of trust in the nature of a mortgage to secure the payment of debts, and amounts to an appropriation of the property, so far as may be necessary to the accomplishment of that purpose Sandusky v. Faris, 49 W. Va. 150, 152, 38 S. E. 563; Snyder v. Middle States Loan, etc.. Co., 52 W. Va. 655, 44 S. E. 250 II. Status of Mortgages. "In this state mortgages are not unknown, but their use is rare, compared with that of the deed of trust. Code W. Va., 1849 (Ed. 1860), ch. 117, § 5." Swann v. Young, 36 W. Va. 57, 14 S. E. 426. 430. III. Requisites and Validity. title therein as against the mortgagor A. WHAT PROPERTY MAY BE 1. In General. A debtor may convey for his creditors' benefit, property held by him nominally in trust for others, but equitably his own, and withhold property nominally his own, but which in equity belongs to others. Brown v. Putney, 90 Va. 447, 18 S. E. 883. 2. Equitable Interests. A debtor, holding an equitable title to land, may convey it, by deed of trust, to secure a creditor; and a court of equity, on a bill exhibited by the cestui que trust, will compel another creditor who, with notice of such deed (though not recorded), has obtained a conveyance of the legal title, by means of an order from the debtor to convey such legal title to the trustee, for the purpose of applying it to the object of the trust. Lambert v. Nanny, 2 Munf. 196. 3. Property to Be Acquired. and third parties with notice without any further act on the mortgagee's part." Horner Gaylord Co. v. Fawcett, 50 W. Va. 487, 492, 40 S. E. 564. A deed of trust executed in good faith to secure a bona fide debt on a stock of goods and extending to cover is not fraudulent per se or prima facie after-acquired property, duly recorded, fraudulent, as to subsequent creditors with notice, in equity. Horner Gaylord Co. v. Fawcett, 50 W. Va. 487, 40 S. E. 564. It seems that in equity a mortgage upon unplanted crops creates a lien in equity, as soon as they are produced. Brockenbrough v. Brockenbrough, 31 Gratt. 580, 592. Construction of Mortgages or Deeds of Trust as Passing After-Acquired Property. See post, "After-Acquired Property," VII, A, 3. 4. Land in Adverse Possession of An other. A deed of trust purporting to create a lien on land in the adverse possession of another is a mere nullity. Bream v. Cooper, 5 Munf. 7; Early v. Garland, 13 Gratt. 1. See the title CHAMPERTY AND MAINTENANCE, vol. 2, p. 776. At Law. At common law, a valid mortgage could not be made to cover after-acquired property. Murray ข. Farmville, etc., R. Co., 101 Va. 262, 263, 43 S. E. 553; Brockenbrough v. Brockenbrough, 31 Gratt. 580; Horner 5. Homestead. Gaylord Co. v. Fawcett, 50 W. Va. 487, 492, 40 S. E. 564. In Equity. In equity a mortgage of property to be acquired is valid and operates as a contract to take effect and attach as soon as the property comes into being. Murray v. Farmville, etc., R. Co., 101 Va. 262, 263, 43 S. E. 553; Horner Gaylord Co. v. Fawcett, 50 W. Va. 487, 40 S. E. 564. While "a mortgage of future-acquired property does not pass any immediate title to such property yet as 'equity considers that done which ought to be done' such a mortgage creates an equitable lien which will attach to the subject matter immediately upon its coming into existence and create a valid See the title HOMESTEAD EXEMPTIONS, vol. 7, p. 97. 6. Fixtures. As to mortgages or deeds of trust upon fixtures, see the titles CHATTEL MORTGAGES, vol. 2, p. 811; FIXTURES, vol. 6, p. 153. 7. Separate Estate of Married Women, See the title SEPARATE ESTATE OF MARRIED WOMEN. B. PARTIES. 1. a. Mortgagor or Grantor. Persons of Unsound Mind. Generally, as to capacity of persons of unsound mind, see the title SANITY, vol. 7, p. 668. As to presumptions and burden of proof where IN capacity of a mortgagor, or grantor in a deed of trust, is set up, see the title INSANITY, vol. 7, p. 681. b. Husband and Wife. Generally, as to mortgages or deeds of trust by husband and wife, see the title HUSBAND AND WIFE, vol. 7, p. 189, et seq. Power of Married Women at Common Law. At the common law the sole deeds of a feme covert were void, and she could not, without the concurrence of her husband, encumber her own freehold estate. Lee v. Bank, 9 Leigh 200, 206. See also, the title HUSBAND AND WIFE, vol. 7, p. 189. Power of Married Women under Statute. When the privy examination, acknowledgment and declaration of a married woman shall have been taken in the manner prescribed by § 4 of ch. 73, Va. Code, and recorded or certified, and the deed of trust, on which it is indorsed, conveying the real estate of a married woman shall have been duly admitted to record as to the husband as well as to the wife, such deed of trust operates to pass from her and her representatives all right, title and interest of every nature, which at the date of the deed of trust she may have in any real estate conveyed thereby, as effectually as if she were at the date of the deed of trust an unmarried woman; and it will so operate, though the deed of trust was given to secure a past debt of her husband or of some third person and there was no new consideration arising when the deed of trust was executed, provided it was in the usual form of a deed of trust. Rollins v. Menager, 22 W. Va. 461. deed of trust the married woman has been defrauded or imposed upon by the pretended privy examination, acknowledgment and declaration. Rollins v. Menager, 22 W. Va. 461, 462. See also, the title HUSBAND AND WIFE, vol. 7, p. 189. Effect of Joint Deed of Trust on Wife's Estate Void as to Wife.-As the husband was vested, by the law in force in 1866, with a freehold estate in land conveyed to wife during coverture, it was held, that a deed of trust executed by the husband and wife on the land which was void as to the wife, but good as to the husband, created a lien on that estate and on the interest of the husband in the fund arising from wife. its sale to pay a debt of the Pickens v. Kniseley, 36 W. Va. 794, 15 S. E. 997. Effect of Wife's Joining Induced by Fraud of Husband. Although a husband fraudulently induces his wife to unite with him in a deed of trust on their joint property to secure a debt due by him, the wife is estopped to set up the fraud against the creditor secured where it appears that he knew nothing of the fraud at the time, and, relying upon the validity of the deed, gave the husband further time within which to pay the debt, took a note without an indorser, and surrendered notes which he claimed and believed were indorsed by party whose name appeared thereon as indorser, although the latter claimed that his indorsement was a forgery. Hyatt v. Zion, 102 Va. 909, 48 S. E. 1. A husband who induces his wife to unite with him in giving a deed of trust on their joint property to secure a note in bank which he desires to renew and get an extension of time on, is not the In such a case the feme covert will not be permitted by parol evidence to contradict the facts set out in the cer-agent of the bank, and the bank is not tificate of her privy examination, acknowledgment and declaration so as to avoid the effect of the deed of trust, unless she first establish by parol evidence satisfactorily, that with the concurrence of those claiming under the affected by his fraud in procuring her to join in the deed. Hyatt v. Zion, 102 Va. 909, 48 S. E. 1. Power of Husband to Convey Wife's Land Equitably Converted into Personalty.-Where land of the wife was con |