*147

is considered as rather unnecessary and cumbersome. The mortgagee himself, under such a power, becomes a trustee for the surplus; and if due notice of the sale under the power be not given, the sale may be impeached by bill in chancery. The title under the power from the mortgagee himself is sufficient in law, and the mortgagor will not be compelled to join in the conveyance.b

A power given to the mortgagee to sell on default, may be given by any person otherwise competent to mortgage, of the age of twenty-one years, though formerly in New-York he was required to be of the age of twenty-five; and the power before any proceedings are had under it, must be duly registered or recorded. These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person, who, by assignment or otherwise, becomes entitled to the money secured to be paid. But the power is not divisible, and an assignment by the mortgagee of a part of his interest in the mortgage debt and estate will not carry with it a corresponding portion of the power. There may be difficult questions arising, as to the com

* Anon., 6 Madd. Ch. Rep. 15.

b Corder v. Morgan, 18 Ves. 394. After a sale under a power, the mortgagor's interest is divested, and he becomes a tenant at sufferance. Kinsley r. Ames, 2 Metcalf's Rep. 29.

New-York Revised Statutes, vol. ii. 545, sec. 1, 2. A notice of sale. under the power, must be published, at least once in each week, for twentyfour weeks successively, in a county newspaper, and by affixing the notice, for the same period, on the court-house door. Ibid. sec. 3. In Maine, the publication is to be three weeks, either in a county newspaper, or by notice on the party, and having it recorded. Act of Maine, 1838, ch. 333. a Bergen v. Bennet, 1 Caines' Cases in Error, 1. Cowen's Rep. 195. New-York Revised Statutes, Ibid. 737, sec. 133.

© Wilson v. Troup, ub. sup.

Wilson v. Troup, 2 vol. i. 735, sec. 108.

petency of persons to mortgage, who have only qualified interests in the estate, or are invested with beneficial or trust powers. But a power to mortgage includes in it a power to execute a mortgage, with a power to sell ;* and the better opinion would seem to be, that a power to sell for the purpose of raising money, will imply a power to mortgage, which is a conditional sale, and within the object of the power. Such powers are con

strued liberally, in furtherance of the beneficial *148 object. A power to appoint land has been held to be well executed, by creating a charge upon it; and a power to charge will include a power to sell. The case falls within the reason and policy of the doctrine that a trust to raise money out of the profits of land, will include a power to sell or mortgage; and such a construction of the power has been long an established principle in the courts of equity. But if the execution of a power be prescribed by a particular method, it implies, that the mode proposed is to be followed, and it contains a negative upon every other mode. This rule more strongly applies to extended than to restricted executions of powers, for omne majus in se minus continet, and, generally, the execution of a power will be good, though it falls short of the full extent of the authority. In respect, however, to the execution of a power to sell contained in a mortgage, the specific directions usually contained in the mortgage, and particularly when they are the subject of a statute

a Wilson v. Troup, 7 Johns. Ch. Rep. 25.

b 1 Powell on Mortgages, 61, a. ed. Boston, 1828.

• Roberts v. Dixall, 3 Eq. Cas. Abr. 668, pl. 19. Kenworthy v. Bate, 6 Ves. 793.

Lingon v. Foley, 2 Ch. Cas. Trafford v. Ashton, 1 P.Wms. 415.

e Joy v. Gilbert, 2 P. Wms. 13.

205. Sheldon v. Dormer, 2 Vern. 310. Allan v. Backhouse, 2 Ves. & Beame, 65. Mills v. Banks, 3 ibid. 1.

f Isherwood v. Oldknow, 3 Maule & Selw. 383. Sugden on Powers, 447. 449. 2d London ed.

provision, will preclude all departure from those directions, and consequently the power in the mortgage to sell would not include a power to lease. It is declared by statute, in New-York, that where any formalities are directed by the grantor of a power, to be observed in the execution of the power, the observance of them is necessary; and the intentions of the grantor as to the mode, time, and conditions of its execution, unless those conditions are merely nominal, are to be observed.*

(6.) Mortgage of reversionary terms.

A very vexatious question has been agitated, and has distressed the English courts, from the early case *of Graves v. Mattison, down to the recent deci- *149 sion in Winter v. Bold, as to the time at which money provided for children's portions, may be raised by sale, or mortgage of a reversionary term. The history of the question is worthy of a moment's attention, as a legal curiosity, and a sample of the perplexity and uncertainty which complicated settlements "rolled in tangles," and subtle disputation, and eternal doubts, will insensibly encumber and oppress a free and civilized system of jurisprudence. If nothing appears to gainsay it, the period at which they are to be raised is presumed to have been intended to be that which would

New-York Revised Statutes, vol. i. 736, sec. 119, 120, 121. A power of sale contained in a mortgage is held valid in Missouri, and a sale by the mortgagee under the power conveys a valid title to the purchaser. Carson ♥· Blakey, 6 Missouri Rep. 273. Such a power is said to be invalid in Virginia. A power of sale in a mortgage is valid and the proceedings regulated by statute in New-York. N. Y. R. S. vol. ii. 545, and by statute in 1842, ch. 277, § 8, every sale duly made under a power is equivalent to a foreclosure in equity, so far as to be a bar to the mortgagor and his representatives, and all persons claiming under him by any title subsequent to the mortgage, or having any lien by or under any judgment or decree subsequent to the mortgage.

be most beneficial to those for whom the portions were provided. If the term for providing portions ceases to be contingent, and becomes a vested remainder in trustees, to raise portions out of the rents and profits after the death of the parents, and payable to the daughters coming of age, or marriage, a court of equity has allowed a portion to be raised by sale or mortgage in the lifetime of the parents, subject, nevertheless, to the life estate. The parents' death is anticipated, in order to make provision for the children. The result of the very protracted series of these discussions for one hundred and fifty years is, that if an estate be settled to the use of the father for life, remainder to the mother for life, remainder to the sons of the marriage in strict settlement, and, in default of such issue, with remainder to trustees to raise portions, and the mother dies without male issue, and leaves issue female, the term is vested in remainder in trustees, and they may sell or mortgage such a reversionary term, in the lifetime of the surviving parent, for the purpose of raising the portions, unless the contingencies on which the portions were to become vested had not happened, or there was a manifest intent that the term should not be sold or mortgaged in the lifetime of the parents, nor until it had become vested in *150 the trustees in #possession. The inclination of

the court of chancery has been against raising portions out of reversionary terms, by sale or mortgage, in the lifetime of the parent, as leading to a sacrifice of the interest of the person in reversion or remainder; and modern settlements usually contain a prohibitory clause against it.b

• Sir Joseph Jekyll, in Evelyn v. Evelyn, 2 P. Wms. 661. 14 Viner, 240. pl. 11.

See Coote's Treatise on the Law of Mortgages, 147-163, and 1 Powell on Mortgages, 74-100, Boston edit. 1828, where numerous cases on this question are collected; and the review of them becomes a matter of as

(7.) Of deposit of title deeds.

A mortgage may arise in equity, out of the transactions of the parties, without any deed or express contract for that special purpose. It is now well settled in the English law, that if the debtor deposits his title deeds with a creditor, it is evidence of a valid agreement for a mortgage, and amounts to an equitable mortgage, which is not within the operation of the statute of frauds. The earliest leading decision in support of the doctrine of equitable mortgages, by the deposit of the muniments of title, was that of Russell v. Russell, in 1783. It was followed by the decision in Birch v. Ellames, and the principle declared is, that the deposit is evidence of an agreement to make a mortgage, which will be carried into execution by a court of equity, against the mortgagor and all who *151 claim under him, with notice, either actual or constructive, of such deposit having been made. Lord Eldon, and Sir William Grant, considered the doctrine as pernicious, and they generally expressed a strong disapprobation of it, as breaking in upon the statute of frauds, and calling upon the court to decide, upon parol evidence, what is the meaning of the deposit. But the decision in Russell v. Russell has withstood all the subsequent assaults upon it, and the principle is now deem

tonishment, when we consider the ceaseless litigation which has vexed the courts on such a point. Most of the great names which have adorned the English chancery, from the reign of Charles II., when the first adjudication was made, down to the present day, have expressed an opinion, either for or against the expediency and solidity of the rule. Such a contingent limitation to trustees, as the one in the instance stated, would be too reinote, and void, under the New-York Revised Statutes, vol. 1, 723, sec. 14--17; but the great point touching the power to sell or mortgage the remainder to raise portions, may arise in New-York, as well as elsewhere.

⚫ 1 Bro. 269.

2 Anst. 427.

• Ex parte Haigh, 11 Ves. 403. Norris v. Wilkinson, 12 ibid. 192. Ex parte Hooper, 19 ibid. 477.