formance of the condition. There is usually in English mortgages, a clause inserted in the mortgage, that until default in payment, the mortgagor shall retain possession. This was a very ancient practice, as early as the time of James the First; and if there be no such express agreement in the deed, it is the general understanding of the parties, and, at this day, almost *155 the universal practice, founded on a presumed or tacit assent. Technically speaking, the mortgagor has, at law, only a mere tenancy, and that is subject to the right of the mortgagee to enter immediately, and at his pleasure, if there be no agreement to the contrary. He may, at any time when he pleases, and before a default, put the mortgagor out of possession, by ejectment, or other proper suit. This is the English doctrine, and I presume it prevails very extensively in the United States. The mortgagor cannot be treated by the mortgagee as a trespasser, nor can his assignee, until the mortgagee has regularly recovered possession, by writ of entry or ejectment. The mortgagor in possession is considered to be so with the mortgagee's assent, and is not liable to be treated as a trespasser. The mortgagor is allowed, in New-York, even to sustain an action of trespass against the mortgagee, or those claiming under him, if he undertakes an entry while the mortgagor is in possession. It was anciently held, that so long as the

• Buller, J., in Birch v. Wright, 1 Term Rep. 378. Rockwell v. Bradley, 2 Conn. Rep. 1. Blaney v. Bearce, 2 Greenleaf, 132. Erskine v. Townsend, 2 Mass. Rep. 493. Parsons, Ch. J., in Newall v. Wright, 3 ibid. 138. Colman v. Packard, 16 ibid. 39. Simpson v. Ammons, 1 Binney, 176. M'Call v. Lenox, 9 Serg. & Rawle, 302. Though I should infer, from the language of the last case cited, that the ejectment would not lie until after a default. In Michigan, by statute in 1843, an ejectment will not lie upon a mortgage until after a foreclosure, and the time of redemption passed.

⚫ See the opinion of Jackson, J., in Fitchbury Cotton Man. Company v. Melven, 15 Mass. Rep. 268, and the case of Wilder v. Houghton, 1 Pick. Rep. 87.

• Runyan v. Mersereau, 11 Johns. Rep. 534. Jackson v. Bronson, 19 ibid. 325. Dickenson v. Jackson, 6 Cowen's Rep. 147.

mortgagor remained in possession, with the acquiescence of the mortgagee, and without any covenant for the purpose, he was a tenant at will. This is also the language very frequently used in the modern cases; but its accuracy has been questioned, and the prevailing doctrine is, that he is not a tenant at will, for no rent is reserved; and

so long as he pays his interests, he is not accounta*156 ble, in the character of a receiver, for the *rents.

The contract between the parties is for the payment of interest, and not for the payment of rent. He is only a tenant at will, sub modo. He is not entitled to the emblements, as other tenants at will are; and he is no better than a tenant at sufferance, and is not entitled to notice to quit before an ejectment can be maintained against him. But whatever character we may give to

Keech v. Hall, Doug. 21. Moss v. Gallimore, ibid. 279. Buller, J. in Birch v. Wright, 1 Term Rep. 383. Thunder v. Belcher, 3 East's Rep. 449. Sir Thomas Plumer, in Christopher v. Sparke, 2 Jac. & Walk. 234. 5 Bing. Rep. 421. With respect to notice to quit, the American authorities differ. In Massachusetts, Connecticut, North Carolina, and Pennsylvania, and probably in other states, the English rule is followed, and the notice is not requisite. Rockwell v. Bradley, 2 Conn. Rep. 1. Wakeman v. Banks, ibid. 445. Groton v. Boxborough, 6 Mass. Rep. 50. Duncan, J., in 9 Serg. Rawle, 311. Williams v. Bennett, 4 Iredell, 127. But in New-York, by a series of decisions, notice to quit was required before the mortgagor could be treated as a trespasser, and subjected to an action of ejectment. It was required, on the ground of the privity of estate, and the relationship of landlord and tenant, and which is a tenancy at will by implication; but the rule did not apply to a purchaser from the mortgagor, for there the privity had ceased. Jackson v. Langhead, 2 Johns. Rep. 75. Jackson v. Fuller, 4 ibid. 215. Jackson v. Hopkins, 18 ibid. 487. By the New-York Revised Statutes, vol. ii. 312, sec. 57, all this doctrine of notice is superseded, and the action of ejectment itself, by a mortgagee or his assigns or representatives, abolished. The mortgagee is driven to rely upon a special contract for the possession, if he wishes it, or to the remedy by foreclosure and sale, upon a default; and this alteration in our local law would appear to be a reasonable provision, and a desirable improvement. The action of ejectment, not being a final remedy, is vexatious, and the possession under it terminates naturally in a litigious matter of account, and a deterioration of the pre

the mortgagor in possession by sufferance of the mortgagee, he is still a tenant. He is a tenant, however, under a peculiar relation; and he has been said to be a tenant from year to year, or at will, or at sufferance, or a quasi tenant at sufferance, according to the shifting circumstances of the case; and perhaps the denomi

nation of mortgagor conveys distinctly and pre- *157 cisely the qualifications which belongs to his ano

malous character, and is the most appropriate term that can be used.b

It is the language of the English books, that a mortgagor, being in the nature of a tenant at will, has no power to lease the estate; and his lessee upon entry (but not the mortgagor) would be liable to be treated by the mortgagee as a trespasser, or disseisor, or lessee, at his election. This is supposed by Mr. Coventry to be the better opinion. The lease of the mortgagor is said to amount to a disseisin of the mortgagee, which renders the lessee upon entry a wrong-doer. But the justice and good sense of the case is, that the assignee of the mortgagor is no more a trespasser than the mortgagor himself; and the mortgagor has a right to lease, sell, and in every respect to deal with the mortgaged premises as owner, so long as he is permitted to remain in possession, and so long as it is understood and held, that every person taking under him takes subject to all the rights of the mortgagee, unimpaired and unaffected."

Partridge v. Bere, 5 Barnw. & Ald. 604.

▸ Buller, J., in Birch v. Wright, 1 Term Rep. 383. Sir Thomas Plumer, in Chelmondelly v. Clinton, 2 Jac. & Walk. 183. Coote on the Law of Mortgage, 327-334. Coventry's notes to 1 Powell, 157. 175, edit. Boston,

1828.

1 Powell, 159, note 160-162. See also, Thunder v. Belcher, 3 East's Rep. 449.

In Chinnery v. Blackman, 3 Doug. Rep. 391, Lord Mansfield said, as early as 1784, that until the mortgagee takes possession, the mortgagor is owner to all the world, and is entitled to all the profits made. A grant by the mortgagor of his equity of redemption with covenants of warranty,

Nor is he liable for the rents; and the mortgagee must recover the possession by regular entry, by suit, before he can treat the mortgagor, or the person holding under him, as a trespasser. This is now the better, and the more intelligible American doctrine; and, in New-York, in particular, since the action of ejectment by the mortgagee is abolished, a court of law would seem to have no jurisdiction over the mortgagee's interest. He is not entitled to the possession, nor to the rents and profits; and he is turned over entirely to the courts of equity."

*158

(2) His rights in equity.

*In ascending to the view of a mortgage in the contemplation of a court of equity, we leave all these technical scruples and difficulties behind us. Not only the original severity of the common law, treating the mortgagor's interest as resting upon the exact performance of a condition, and holding the forfeiture or the breach of a condition to be absolute, by non-pay-ment or tender at the day, is entirely relaxed; but the narrow and precarious character of the mortgagor at law is changed, under the more enlarged and liberal jurisdiction of the courts of equity. Their influence has reached the courts of law, and the case of mortgages is one of the most splendid instances in the history of our jurisprudence, of the triumph of equitable principles over technical rules, and of the homage which those principles have received by their adoption in the courts

passes the covenants real annexed to the conveyance, to the grantee.. White v. Whitney, 3 Metcalf's Rep. 81. In Evans v. Elliot, 9 Adolph & Ellis, 342, the court of K. B. was disposed to qualify the universality of the rule, that the mortgagee might always treat both the mortgagor and his lessee as trespassers. He may by his own conduct preclude himself from so doing.

* Jackson, J., in 15 Mass. Rep. 270. Duncan, J., 9 Serg. & Rawle, 311. ii. 312.

Parker, Ch. J., 1 Pick. Rep. 90. New-York Revised Statutes, vol..

of law. Without any prophetic anticipation, we may well say, that "returning justice lifts aloft her scale." The doctrine, now regarded as a settled principle, was laid down in the reign of Charles I., very cautiously, and with a scrupulousness of opinion. "The court conceived, as it was observed in chancery, that the said lease being but a security, and the money paid, though not at the day, the lease ought to be void in equity." The equity of redemption grew in time to be such a favourite with the courts of equity, and was so highly cherished and protected, that it became a maxim, *that "once a mortgage always a mortgage." *159 The object of the rule is to prevent oppression; and contracts made with the mortgagor, to lessen, embarrass, or restrain the right of redemption, are regarded with jealousy, and generally set aside, as dangerous agreements, founded in unconscientious advantages assumed over the necessities of the mortgagor. The doctrine was established by Lord Nottingham, as early as 1681, in Newcomb v. Bonham ; for, in that case, the mortgagor had covenanted, that if the lands were not redeemed in his lifetime, they should never be redeemed; but the chancellor held, that the estate was redeemable by the heir, notwithstanding the agreement; and though the decree in that case was subsequently reversed, it was upon special circumstances, not affect

• Emanuel College v. Evans, 1 Rep. in Ch. 10. In the case of Rosecerrick v. Barton, 1 Cases in Ch. 217, Sir Matthew Hale, when Chief Justice, showed that he had not risen above the mists and prejudices of his age on this subject, for he complained very severely of the growth of equities of redemption, as having been too much favoured, and been carried too far. In 14 Rich. II., the parliament, he said, would not admit of this equity of redemption. By the growth of equity, the heart of the common law was eaten out. He complained that an equity of redemption was transferable from one to another, though at common law a feoffment or fine would have extinguished it; and he declared he would not favor the equity of redemption beyond existing precedents.

▷ 1 Vern. 7, 232, and 2 Vent. 364.