separate estate, if any she has, bound, either under § 2502 of the Code, or § 2295, as amended, or under act of March 7, 1900 (acts, 1899, 1900, p 1240), or in any other way by the covenant of warranty contained in the second deed. The warranty is a nullity as to the wife, and can not operate to estop her from asserting her debt secured in the first deed. Augusta Nat. Bank v. Beard, 100 Va. 687, 42 S. E. 694. Lent-nothing but actual payment of A quitclaim deed from mortgagee to If husband and wife unite in a deed conveying the husband's lands to a trustee in trust to secure the payment of a debt in which the wife has an interest, and subsequently they unite in a second deed, containing a covenant of general warranty, conveying the same land to another trustee to secure other debts of the husband, the second deed does not operate to postpone or release the wife's interest in the debt secured by first deed, nor otherwise affect her than as a release of her contingent right of dower in the equity of redemption in the lands conveyed by the second deed. In the absence of reference in the second deed to any separate estate owned by the wife, she is not bound, rsonally, nor is her Sale of Property and Acceptance of New Security from Purchaser. If a note is secured by a deed of trust, and the grantor in said trust conveys the property, on which said trust is given, to a third party, and that third party by agreement of the debtor and creditor gives his note to the creditor for the debt and interest and executes a deed of trust to secure such new note, it is a payment of the old debt, and the first deed of trust is discharged. Dryden v. Stephens, 19 W. Va. 1. Where a note is secured by a deed of trust, and the grantor conveys the property to a third person who by agreement of all the parties gives his note to the creditor for the debt and executes a deed of trust to secure it, the fact that in the release or quitclaim by the creditor of the first deed of trust he acknowledges payment of the debt thereby secured, will not be an knowledgment of the payment of the debt secured by the second deed of trust nor operate as a release thereof. Dryden v. Stephens, 19 W. Va. 1. ac Where A gives a mortgage on lands to B and then the agent of B and A agree to convey to C on his securing the mortgage money; after which C gives a deed on sundry slaves, for that and other debts to a succeeding agent of B, the first mortgage is discharged, though B never conveyed to C. Towler v. Buchanans, 1 Call 188. A stock of goods and merchandise was assigned by a debtor to a trustee to secure certain debts and liabilities due sundry creditors. By the deed of assignment the trustee is directed to sell the stock for cash, and apply the proceeds to the discharge of the debts and liabilities secured according to priority, and in all other respects to proceed according to the laws of West Virginia concerning deeds of trust. Meeting with an opportunity to sell the whole stock in bulk the trustee convenes the grantor in the deed, and the secured creditors, and, with their consent, makes a sale in bulk on credit, taking the notes of the purchaser, payable at the National Bank of Parkersburg, and a deed of trust, on the pur chaser's farm of 226 acres to secure said notes, which are taken payable to said trustee, and deposited in said bank. Subsequently, the purchaser sells the stock in various parcels to sundry subpurchasers, who enter into written contracts that they will devote the proceeds of their sales primarily to taking up the purchaser's said notes in bank. Among other subpurchasers entering into such an engagement, and receiving a large amount of the goods, is said original trustee. It was held, that no such arrangement between the purchaser and trustee could relieve the former's farm from the lien securing the purchase notes, except as to such creditors as may have actively participated in or expressly assented to such an arrangement. Atkinson v. Beckett, 34 W. Va. 584, 12 S. E. 717. was divested; for in the conveyance of chattels personal the law disregards mere formalities of instrument, and the payment of the debt secured completely extinguished the incumbrance. Tavenner v. Robinson, 2 Rob. 280. f. Sale of Property for Taxes. Where land sold for taxes has been conveyed to the purchaser, and his tax deed duly recorded, if before the land was so sold, it had been conveyed to a trustee to secure a debt the title vested in the trustee by the deed of trust is extinguished by the tax deed. Summers v. Kanawha, 26 W. Va. 159. See generally, the title TAXATION. As to purchase at tax sale by mortgagor or mortgagee, see ante, "Right to Purchase Mortgaged Property at Tax Sale," X, A, 1, f; "Right to Purchase Mortgaged Property at Tax Sale," X, B, 1, e. g. Extension of Time on Debt Secured. A mortgage of leasehold property was made to secure to Bank of Virginia the contents of a note discounted for mortgagor's accommodation, with stipulation that the note shall be renewed only till a certain time; and then the same subject was mortgaged to Farmers' Bank, to secure a debt to it; the Bank of Virginia renewed the note for three years after time stipulated. Such prolonged renewals of the note were held only an extension of credit for the same debt, which no wise impaired the lien of the first mortgage, and the Bank of Virginia had priority over the Farmers' Bank. Farmers' Bank v. Mut. Assur. Soc., 4 Leigh 69. Effect. 4. Sale of Personal Property Mortgaged by Agreement of Parties.-A slave conveyed by a deed of trust was sold, in the absence of the trustee, by the debtor with concurrence of the trust creditor, to another creditor not secured a. by the deed, for a consideration compounded of the balance remaining due upon the trust, other debts claimed by the trust creditor, and a debt due to the purchasing creditor. It was held, that by this arrangement the trust deed was discharged, and the title of the trustee, so far as concerned the personal property embraced in the deed, Release of One Deed of Trust as If the purchaser of real estate assumes the bonds of his vendor as a part of the purchase price, and secures the same by a deed of trust on such real estate for the protection of his vendor, the said bonds being already secured by a prior deed of trust on the same real estate, the release of the first deed of trust operates as a release of the second deed of trust also. National Mut. Bldg., etc., Ass'n v. Blair, 98 Va. 490, 36 S. E. 513. ing to his promise; and that the lien of plaintiff's mortgage, of which defendant had fraudulently procured his release, be reinstated and enforced. It was held, that though plaintiff might b. Release Obtained by Fraud or Mis- have maintained action at law on the take. promise, yet the promise being part of the fraud, chancellor has jurisdiction to relieve on the ground of the promise; and that plaintiff has a right to have the lien of the mortgage reinstated, and on this ground also, plaintiff's case is properly relievable in equity. Poore v. Price, 5 Leigh 52, 27 Am. Dec. 582. Release by Mortgagee of Tract Primarily Liable. The cancellation of a mortgage on the record is only prima facie evidence of its discharge, and the owner may prove that the cancellation was done by fraud, accident, or mistake, and, if he does this, his rights will not be affected by the improper cancellation of it. Fidelity Ins., etc., Co. v. Shenan- c. doah, etc., R. Co., 32 W. Va. 244, 9 S. E. 180. To authorize equity to cancel a writing releasing a deed of trust on the ground of mistake based on mistaken belief of a party, that belief must be a fair and reasonable one justified by facts adequate to inspire it. Atkinson 2. Plum, 50 W. Va. 104, 40 S. E. 587. As to effect of releasing tract primarily liable as discharging lien as to property secondarily liable, see post, "Release by Mortgagee of Tract Primarily Liable," XI, B, 2, c, (2). d. Release of Part of Property Conveyed by Operation of Law. Where land and slaves were conveyed in trust to secure a debt, with a provision that the slaves should be sold first, and if the sale should not raise a sufficient sum to pay the debt, then the land was to be sold, it was held, that the fact that the slaves were emancipated did not preclude a resort to the land, especially as the sale of the slaves was delayed by request of the Owner of the land. Thurmond V. Woods, 27 Gratt. 727. 5. Burden of Proof. Plaintiff in chancery is induced to release a mortgage of real estate, to defendant, a purchaser of the mortgaged subject, and to take a transfer from him, without his own indorsement, of notes of others negotiable at bank, by defendant's false and fraudulent representation that the notes were collaterally and amply secured, by an assurance that they were nowise tainted with usury, and by an express promise that if, and so soon as, the parties to the notes should in any way set up the objection of usury to them, defendant would himself immediately pay the contents of the notes to plaintiff; the notes so transferred to plaintiff, being protected for nonpayment, he brings suit on them, and recovers judgment against maker and indorser; and then maker files bill in chancery to enjoin judgment, and for relief on ground of usury, and it appears probable the notes are in fact usurious; whereupon, plain- C. ENTRY OF SATISFACTION. tiff files this bill, immediately, praying An entry of satisfaction by the mortthat defendant be compelled to pay gagee, after he has parted with his inhim the contents of the notes, accord-terest in the security, will not discharge The purchaser of a part of a tract of land, who has full notice or knowledge of a deed of trust on the whole, must assume the burden of proving, if he asserts it, that the trust debt has been released in whole or in part. The burden is on him to show that the trust creditor, with notice of his equities, has done some act to his prejudice. Lynchburg Perpetual Bldg., etc., Co. z. Fellers, 96 Va. 337, 31 S. E. 505. the mortgage in favor of one who had acquired an interest in the land before the discharge was made. Fidelity Ins., etc., Co. v. Shenandoah, etc., R. Co., 32 W. Va. 244, 9 S. E. 180. alive, but the interest must be one the promotion of which commends itself to a court of conscience. It must be for an innocent purpose, and in order to work substantial justice. An enThe fact that the right to enforce a cumbrance acquired by a debtor which deed of trust is barred by the statute he can only assert to the prejudice of of limitations does not entitle the his creditors will be regarded as exdebtor to have it marked satisfied of tinguished. Allen v. Patrick, 97 Va. record, as lapse of time does not ex- 521, 34 S. E. 451. tinguish the right but only bars the remedy. Turnbull v. Mann, 94 Va. 182, 26 S. E. 510. As to fraudulent entry of satisfaction, see ante, "Release Obtained by Fraud or Mistake," XIII, B, 4, b. D. WAIVER OF LIEN. One will not be held to have waived a deed of trust on land, and be compelled to look to merely personal security of a third party, unless the waiver be express, or the intent to waive be very clear and plain. Bansimer v. Fell, 39 W. Va. 448, 19 S. E. 545. Acquisition of Land by Mortgagee.In equity, it is a general rule that the mortgagee's acquisition of the equity of redemption does not merge the legal estate as mortgagee so as to prevent his setting up his mortgage to defeat an intermediate title, if such appears to have been the intention of the parties and justice requires it. Brockenbrough v. Brockenbrough, 31 Gratt. 580. The acquisition of the legal title to land on which one holds a lien does not necessarily merge the lien. It is a question of intention. In the absence of an express agreement to merge the lien, equity will keep it alive or destroy it, as appears to be to the interest of the purchaser. It will not destroy it it there is any necessity for keeping it alive, such as the existence of another incumbrance, in the absence of an agreement to that effect. Rorer V. Ferguson, 96 Va. 411, 31 S. E. 817. Where a creditor, secured by a deed of trust with others, sues out a foreign attachment against his debtor, and seeks to subject the property conveyed in the deed to the payment of his debt, in preference to the other creditors, and fails in the attachment proceedings, this does not preclude him from his Generally, where a deed of trust credright to claim under the deed his rat-itor purchases the land conveyed in able proportion of the trust fund. Clark v. Ward, 12 Gratt. 440. trust from the deed of trust debtor, and such debtor conveys the land to such purchaser, which deed is duly recorded, the deed of trust will be upheld as a subsisting lien thereon, for the debt and interest thereby secured, for the protection of the deed of trust creditor, to the extent of such debt and interest, against an intervening title or intervening judgment creditors, unless injustice would be done thereby. In such case an extinguishment of the deed of trust lien and debt will not be presumed against the equities of the parties. McClaskey v. O'Brien, 16 W. Va. 791, 793. A. XIV. Equity of Redemption. chattel interest; and until a decree of NATURE OF RIGHT. 1. In General. While the nonperformance of the condition in a mortgage, at law vests the estate in the mortgaged subject, absolutely in the mortgagee, equity, looking at the substance rather than the form of things, and regarding a mortgage as a mere security, acting upon the principle of granting relief foreclosure, the mortgagor continues the real owner of the fee, and may lease, sell and in every respect, deal with the mortgaged premises as owner. The equity of redemption is descendible by inheritance, devisable by will, and lienable by deed, precisely as if it were an absolute estate of inheritance at law. Hale v. Horne, 21 Gratt. 112; Childs v. Hurd, 32 W. Va. 66, 9 S. E. 362. Where a grantor in a deed of trust to secure debts, which conveys real fore a sale of the trust subject, the and personal estate, dies intestate bequasi equity of redemption descends to his heirs, and the surplus proceeds of the real estate, after the trust is satisfied, is applicable ratably to the payment of the debts of the grantor by specialty binding the heirs. If he by will directs the sale of his real estate for payment of debts, such surplus proceeds are equitable assets to be distributed among all the creditors. In such a case the quasi equity of redemption in the personal estate embraced in the deed, is legal assets. Harvey Steptoe, 17 Gratt. 289. against forfeitures wherever compen- 2. Real Estate Descending to Heirs. sation can be made, gives to the mortgagor the right to be exercised in a reasonable time, notwithstanding the breach of the condition, to redeem his property by paying to the mortgagee the amount of his debt and interest, and have his property reconveyed to him. This right is called the equity of redemption, and is an inseparable equitable incident of every mortgage. It is wholly a creature of equity, and can not be defeated, restrained, evaded, or in any way impaired by agreement of parties as long as the mortgage continues a security. An irredeemable mortgage is a legal solecism. Hence the expression, "once a mortgage, always a mortgage." What is meant by this is, that whenever and as soon as a mortgage is created by the act of parties, equity at once annexes inseparably a right of redemption, independent of and paramount to the will of the parties. It is not meant, however, that after a mortgage has been once created, the mortgagee may not become 5. Levy and Sale. the purchaser from the mortgagor of his equity of redemption. He may be-being, in substance and effect, a mortcome such purchaser, thus combining the legal and equitable estates, and his purchase will be valid, if, under the jealous scrutiny of a court of equity, it is shown to be for an adequate consideration, that no undue advantage has been taken of the necessities of the mortgagor, and that it is in all respects fair. Snavely v. Pickle, 29 Gratt. 27. A mortgage is regarded in equity as a mere security for the debt, and only a 3. Whether Subject to Lien of Judg ment. See the title JUDGMENTS AND DECREES, vol. 8, p. 393. 4. Whether Subject to Dower. Liability to Levy.-A deed of trust gage, it necessarily follows that the grantor in such deed, though nominally divested of the legal title, yet retainan equitable interest corresponding to an equity of redemption under a mortgage. This interest is contingent and equitable, and in the absence of statute upon the subject, is almost universally held not liable to be seized and sold on execution, and this is the rule laid down in the earlier Virginia cases. Claytor |