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SEC. 11. What right remains in the grantor-How vendible, &c. The interest of the grantor or bargainor in a deed of trust, he having the right to his lands again after payment of the debts, is in effect an equity of redemption. And as such it may be conveyed by the debtor, subject to the deed of trust; and in those states where such equities are liable to execution, the resulting equitable interest of the grantor in a deed of trust may be seized and sold on execution: Harrison vs. Battle, 1 Dev. Eq. 541.

And this interest may be thus sold, even before the trust debt is due, and consequently before the trustee is authorized to sell the legal interest: Poole vs. Glover, 2 Ired. (Law) 129. But the purchaser at such sale by the sheriff does not acquire the legal estate, that being in the trustee, and hence cannot maintain ejectment by virtue of the sheriff's conveyance: Anderson vs. Holloman, 1 Jones (Law) 169; 7 Ired. (Law) 418.

SEC. 12. The powers are appendant to the estate-Effect of alienation by Trustee, &c.-The legal estate being thus in the trustee or mortgagee, the power of sale comes under those powers which are appendant to the estate, and takes effect out of it. The total alienation of the estate to which the power is appendant or annexed, operates at least at law as an extinguishment of the power: 1 Sugd. on Pow. 54. It is accordingly held that a quit claim from the trustee to the creator of the trust, even in fraud of

1 In Mississippi, Ohio, Arkansas, and perhaps some other States, the English rule is adopted, and the interest of the grantor in a deed of trust is not subject to execution at law (see note to section 3, supra), the remedy of the creditor being in equity. But "the prevalent doctrine in the States of this Union is, that such interests may be levied on and sold by execution at law:" McGregor vs. Hall, 3 Stew. & Port. 397. So Kent, who says that "in this country the rule has extensively prevailed that an equity of redemption was vendible as real property on an execution at law :" 4 Kent's Com. 161, 160, 195, n. So if the trustee makes a sale and there is a surplus, this represents the equity of redemption, and the widow of the grantor is dowable in it. As to the surplus arising on such sales, the rights of the grantor and of creditors and lienholders thereto, more will be said hereafter.

2 See Hill on Trust. 471, for illustrations of the distinction between powers appendant and those simply coliateral, not being accompanied by any legal estate. Though a trustee may not take the fee, he may yet have power to convey the fee: Alger vs. Fay, 12 Pick. 322.

the rights of the cestui que trust, reinvests the grantor in the deed of trust with the legal title, and a subsequent sale by the trustee will not give his purchaser the legal title. But equity would, in a proper case, doubtless relieve against the fraud of the trustee : Huckabee vs. Billingsby, 16 Ala. 414.

But if the power of sal is extinguished by a conveyance of the estate to which it is appendant, it may be revived by a reconveyance to the trustee: Salisbury vs. Bigelow, 20 Pick. 174. So where the first sale made by a trustee was abandoned by the parties, and afterwards a second sale was made by the same trustee, without any renewal of authority, both sales were disregarded, and the debtor permitted to redeem: Hogan vs. Lepretre, 1 Port. (Ala.) 392; Doe vs. Robinson, 24 Miss. 688.

SEC. 13. Nature of the trust and of the cestui que trust's interest.—The trustee or a mortgagee with power of sale, holds the land in trust, first, for the payment of the specified debts, and, secondly, for the benefit of the grantor or owner of the equity of redemption, if anything should be left. But the interest of the beneficiary in a deed of trust, or of a mortgagee with a power of sale, is not such an interest in the land as to be subject to execution at law before foreclosure, or at least before entry.1

1 The nature of deeds of trust, and of the respective rights and interests of the parties thereto, came under discussion in North Carolina not many years ago in a contested election case, which excited considerable attention at the time. The Constitution of that State, among other qualifications to entitle a person to vote for a member of the Senate, requires the voter to be "possessed of a freehold of fifty acres of land for six months before and at the day of election." A contest arose, and the Senate submitted three questions, under this provision of the Constitution, to the Supreme Court :

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1st. Is the vote of a bargainor or grantor in a deed of trust (to a trustee to secure debts to other persons with power of sale on default) legal?"

2d. Is the vote of such trustee legal?

3d. Is the vote of the cestui que trust legal?

RUFFIN, C. J., noted for his reverence of, and inflexible adherence to, the common law, communicating the opinion of the Court, holds :

1st. That a bargainor or mortgagor is not a freeholder, and cannot therefore vote-the execution of such an instrument destroying his freehold estate.

2d. The same as to the beneficiary, because he has "neither a legal or equitable right to the land, but only a right to have his debt raised out of it."

VOL. XI.-42

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McIntyre vs. Agricul. Bank, 1 Freem. Ch. R. 105; 1 Johns. Cas. 160; 4 Kent's Com. 159, 160; 3 Stew. & Port. 408. Further as to nature of the trust: Harrison vs. Battle, 1 Dev. Eq. 541; Leonard vs. Ford, 8 Ire. (Law) 418; Jenks vs. Alexander, 11 Paige 619, 624.

In our next we propose to consider the mode of executing the power; and herein of notices of sale; when equity will enjoin. and when set aside sales; effect of sales in barring equity of redemption and cutting off subsequent lienholders; trustee's deed; of the right to the surplus, &c., &c.

Davenport, Iowa.

J. F. D.

RECENT AMERICAN DECISIONS.

MOSES WELLS vs. SOMERSET & KENNEBEC RAILROAD COMPANY.

It is provided by 5, c. 81, of R. S. of 1840, that in locating railroads, “no corporation shall take any meeting-house, dwelling-house, or public or private burying-ground, without the consent of the owners thereof." Held, that the term dwelling-house, as here used, means only the house, and includes no part of the garden, orchard, or curtilage.

The right of eminent domain confers upon the Legislature authority to take private property for public uses, when the public exigencies require it, subject only to that provision of our Constitution which exacts just compensation; and a dwelling-house is no more exempt than any other species of real estate, when the Legislature, in the exercise of that right, determines that the public esigencies require it.

Exceptions from the ruling of RICE, J.; also, on motion of defendants to set aside the verdict.

This was an action of the case for entering the plaintiff's close and erecting thereon a bridge. The various questions of law, upon

3d. That a mortgagee or trustee may vote if actually in possession for the requisite period, but not otherwise: Appendix to 5 Ired. Eq.

Tested by ancient common law principles, this decision was undoubtedly right. Kent's criticism of Judge TROWBRIDGE's doctrines on mortgages would apply to it. "It is in the rear of the improvements of the age in this branch of science; it is an affront to common sense to hold that the mortgagor, even of a freehold interest. is not the real owner:" 4 Com. 195.

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which the Judge at Nisi Prius gave instructions to the jury, were argued by

Bradbury, Morrill & Meserve, for the defendants, and by

J. Baker, for the plaintiff.

It was contended by the counsel for the plaintiff, that the instruction that the defendants could not so locate upon the plaintiff's land connected with his dwelling-house as necessarily to deprive him of the reasonable use thereof as a dwelling-house, was correct. It was a necessary part of the dwelling-house. R. S. of 1840, c. 81, § 5; also c. 51, § 1. Instructions more favorable would render the Statute provision nugatory. The word is used either in its proper or technical sense, and either will carry with it the land necessary to its use. Bouvier's Law Dic., "House;" R. S., c. 1, § 4; 13 Met. 109; 2 Greenleaf's Cruise 642; 27 Maine 357, 360; 3 Mason 280 and 284; 1 Sumner 500.

From the view taken by the Court of this instruction, further reference to the other questions of law, the evidence reported, and the arguments of counsel relating thereto, becomes unnecessary.

The opinion of the Court was delivered by

CUTTING, J.-The defendants, on the trial, contended that the premises in controversy, at the time their road was located, were owned by one Frederick Wingate, to whom they have paid the land damages; that the whole width of their road was located north of the northerly line of the plaintiff's land; consequently the dividing line of the two lots became a question of fact, and much evidence, touching that point, was submitted to the jury. The case finds that several deeds, plans, and locations used at the trial are submitted, but none have been furnished, and, from the view taken, they become unnecessary.

It was claimed by the plaintiff that a portion of the road was located on his lot, and so near to his dwelling-house as seriously to incommode him in its occupancy. Upon this point the Judge instructed the jury, "that the defendants could not take the plaintiff's

dwelling-house, nor so locate upon his land connected therewith, as necessarily to deprive him of the reasonable use thereof as a dwelling-house, and, whether they had so done, was a question for them to determine." This ruling raises a question as to the construction of R. S. of 1840, c. 81, § 5, under which the location was made, and which provides that "no corporation shall take, as aforesaid, any meeting-house, dwelling-house, or public or private burying-ground, without the consent of the owners." The correctness of that part of the instruction which related to the dwellinghouse is not controverted, but only the subsequent part which refers to the inconvenient proximity of the road to the house.

It is contended, by the plaintiff's counsel, that the word "house" is used either in its popular or technical sense, and will carry with it the land necessary for its use; and, to this point, is cited Bouvier's definition, sustained by numerous authorities, that "in a grant or demise of a house, the curtilage and garden will pass," and hence, it is argued, that whatever passes under the term house is not within the defendants' control by force of their charter or any law of the State. And, further to sustain this view, R. S., c. 1, § 4, is referred to, which provides that "words and phrases are to be construed according to the common meaning of the language. Technical words and phrases, and such as have a peculiar meaning, are to be construed as conveying such technical or peculiar meaning.' If the word dwelling-house have a technical meaning, it has also a common meaning,-such as, "a building inhabited by man." Bouvier. "The house in which one lives." Webster. We think the Legislature, in the enactment of our statutes, must have understood the term dwelling-house as having a common and not a peculiar or technical meaning; otherwise burglary may be committed by a felonious breaking and entry in the night time into a garden or curtilage, or a civil process may be served, by leaving a copy in the debtor's garden or door yard, as his last and usual place of abode. Indeed, the plaintiff cannot contend for a technical construction without impeaching the ruling which he attempts to uphold. His doctrine would prohibit the defendants from locating upon the curtilage, the garden, and, according to Bacon's definition,

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