1. Personal property may be mortgaged without any formal conveyance, and by a simple transfer of possession.

2. The mortgagee of personal chattels is not compelled to file a bill to foreclose, but may sell at auction on giving reasonable opportunity to the debtor to redeem, and apprising him of the time and place of sale.

3 Harr. & McHen., 399; 3 Mason., 520; 10 Ohio, 439; 5 Hill, N. Y. R., 272. Contra, 4 Rand., 225; 17 Mass., 419; 4 Rand., 225; Vide also; 5 Peters, 481.

2. A deed of trust is so far a mortgage, that the owner may at any time before a sale, require a reconveyance upon paying the money due. But the owner, cannot object to the sale by the creditor trustee, nor disturb his vendee, though by the terms of the original conveyance, the owner, was to join the trustee in the deed to the purchaser.

3. When a third person, disinterested and indifferent between the parties, is constituted the trustee, he takes the legal though defeasible title; which title becomes absolute in his vendee by his deed at law. And in a court of law his vendee need not show that the conditions of the trust deed have been complied with. While however, the vendee gets a legal title by the mere execution of the deed by the trustee, the original owner of the land, or his alienee, is not to be injured by a breach of trust on the part of the trustee. A purchaser from him, the requisitions of the trust deed not being complied with, does not in Equity, get a complete title. He does not get it, because, until then, the trustee is not authorized to convey it. 6 Munf., 358.

Here we see the distinction exemplified between a mere power and a power coupled with a title: for where an attorney in fact, or agent, or officer of the law who has no title, makes a sale by authority of the party or of the law, his deed will pass no title unless it be in strict conformity with the authority or the law; but the trustee who conveys, is at law considered as passing the legal estate, though Equity looking upon him merely as an agent or instrument, will avoid the deed, if not made conformably to his powers. 4 Munf., 431.

4. A trustee, in a Deed of Trust, is to be considered the agent of both parties; he ought to act impartially between them; he ought to disregard the suggestions of either party inconsistent with that duty; he has in general, no greater power, touching his trust than a commissioner of a Court of Equity. If there are impediments to the fair execution of the trust, such as arise, for instance, from a cloud about the title, which must prevent an advantageous sale, or if the amount which is to be raised is uncertain, and in order to do justice it is necessary to ascertain it, he himself, before proceeding to sell, ought to call upon a Court of Equity to lend its aid in removing the impediments, or in settling the

3. Subsequent advances by the mortgagee of personal chattels are presumed to have been made on their security; without any proof of a contract to that effect. This presumption, however, may be rebutted.

4. What are the principles which determine priority of payment between different mortgages?

Where one of several incumbrancers has acquired the legal estate, the doctrine of tacking, which has been already considered, prevails. Where there are several equitable incumbrancers, one may sometimes by superior diligence obtain a better equity. Thus, where there are different assignees of the same

accounts. If in these cases, he fails to do so, then it is the right of the debtor to stay his proceedings by injunction, until these objects can be effected. Gilmer, R., 130; 1 Rand, 311.

5. It seems further to be settled, that where there are many incumbrances, a younger incumbrancer by deed of trust should not be permitted to proceed to sell, without having first brought all parties into a Court of Equity, in order to settle the amount of the prior incumbrances, subject to which his sale must be made: since otherwise the purchaser could not know what he was buying, and of course a fair sale could not be effected. And this was decided by analogy to the case of subsequent mortgages, which is said to be apt and clear; for in such case the subsequent mortgagee must convene all the prior incumbrancers before the court, for the purpose of ascertaining the amount due to them; and he is entitled to make the most of the fund for his and their benefit, by removing all impediments to a fair sale. Gilmer R., 133.

On a bill to foreclose a mortgage, it seems to be yet unsettled, whether subsequent incumbrancers are indispensable parties. Vide Vesey, jr., vol. 3, 15; Sumner's edition, in notes.

6. An injunction will be granted to stay proceedings under a deed of trust, for any cause, which would invalidate the security at law, such as usury, or other void consideration, or where it was obtained by fraud or oppression. A Court of Equity proceeds upon the ground that a party has had no day in Court, to contest the fairness of the creditor's claim, and that without its interposition, there would be no tribunal before which he could defend himself. 2 Mun.. 407; 1 Rand, 179.

7. Where two trustees are appointed, without making provision for any one to act, the death or refusal of one to proceed, after acceptance of the trust; or where there is only one trustee, his death or refusal; or the acquisition by him of an interest under the deed, which converts the security at once, into a mortgage, will make it necessary to resort to

equitable interest, neither of whom had any knowledge of a prior incumbrance, he who first gives notice of his title to the holder of the legal interest, will acquire a right to priority of satisfaction:1

equity for the purpose of enforcing the deed. It has been also held, that the death of the debtor was a sufficient reason for arresting the execution of a Deed of Trust without the aid of Equity; since the duty of redeeming, and the benefit of redemption, which were before blended in the same person, are separated, the duty devolving upon the executor, and the benefit accruing to the heir. 3 P. Williams, 333. The student will find the subject of this note, considered more at large, in Tucker's Commentaries, and Robinson's Chancery Practice. Vide also 14 Pe.ter's, U. S. R., 19.

1Vide 1 Rand. Rep., 466; 2d.Dev. & Batt., 51; 13th Ohio Rep., 240.

CHAPTER XXVIII.

ASSIGNMENTS.

1. WHAT IS AN ASSIGNMENT, AND HOW REGARDED IN EQUITY. 2. GROUNDS OF EQUITABLE JURISDICTION ON ASSIGNMENTS.

3. WHAT MAY BE THE SUBJECT OF ASSIGNMENT.

4. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS BY INSOLVENT DEBTOR.

1. What is an assignment, and how is it regarded in Equity? An assignment may be general, as when an insolvent debtor makes a conveyance of his property, for the benefit of his creditors; or special, as when one man grants to another, some right, title, or chose in action. No technical words are necessary to constitute an assignment in Equity. Any order, act, or writing, which makes an appropriation of a fund, amounts to an equitable asssignment of it. At common law, no assignment

1 Any words, which show the intention of the parties to make a transfer of the debt, will amount to an assignment; 1 Black., 138.

2 When the charter of a bank expressly requires that the transfer of stock be made on the books of the bank, no other mode of assignment will be valid; 5th Black., 197. Courts of Equity, however, will make a distinction in such case, between the legal and equitable title. The general construction, which they have put upon provisions of this character, is, that they are designed solely for the security of the bank itself, and of purchasers without notice, and that as between the vendor and vendee, a transfer, not in conformity to such provision, is good to pass

of a chose in action was supported, from its supposed tendency, to encourage litigation; and with the exception of negotiable instruments, such continues to be the general rule at law, unless it has been altered by statute.' But Courts of Equity regard an assignment, as a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, to recover the debt, or reduce the property into possession. They are disposed to uphold and favor bona fide assignments. Thus, the assignment of a pecuniary legacy, charged on land, will be regarded as an assignment of money only, and therefore, not affected by a law, requiring all conveyances of interest in land to be registered. The validity of an assignment in Equity, does not at all depend upon the assent of the debtor although it may be important to give him notice of it, to preclude the possibility of any equity supervening in favor of third perBut there are many cases at law, in which the assent of the debtor, to an assignment, is necessary to support an action. For example, where an order is drawn on a debtor for funds of the drawer in his hands, the holder cannot maintain a suit at law, against the drawee unless he accept the order.

sons.

2

the equitable title, and divest the vendor of all interest in the stock; 2d Cow., 777; 22d Wend., 362; 8th Pick., 90; 3rd How. S. C. R., 513. In the latter case, which is a very learned and interesting one, it was farther held, that such equitable assignment, was valid against the claims of a creditor, under an attachment subsequently issued. But it seems that in England, that either an actual transfer, or a formal notice to the company, of the assignment, is requisite, under their bankrupt laws, in order to divest the reputed ownership in the debtor, as against his assignees in bankruptcy, in case, he should become bankrupt, before any actual transfer was made; vide 2d Kent Comm., 577.

1 Courts of law, following the rules of Equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protection, not inconsistent with the established principles and modes of proceeding, which govern tribunals acting according to the course of the common law; 1 Wheat., 233.

2 Where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and binds it in the hands of the drawee, after notice. But where an order is drawn either on a general or a particular fund, for a part only, it does not amount to