1027; 4 Kent 146; 1 Hill. on Mortg. 90. See also Longwith vs. Butler, 3 Gillman 32, which contains a succinct reference to the history of the question in England and in some of the States, and the authorities bearing upon it. See also Judge EMOTT's opinion, by notice and sale authorized and regulated by statute-the mortgagor has two years to redeem: Byron vs. May, 2 Chand. 103; Walton vs. Cody, 1 Wis. 420.

RHODE ISLAND.-Sales by mortgagee under power are recognised, but do not seem to be in common use: Allen vs. Robbins, Am. Law Register, May, 1863, p. 442; Nichols vs. Baxter, 5 R. I. 491.

TEXAS.-Mortgagee may execute power of sale: 4 Texas 20; 6 Id. 174. Mortgages are treated as mere securities, the title remaining with mortgagor till foreclosure. And it is the same as respects a deed of trust. Deeds of trust and mortgages, with power of sale, are the same in legal effect. In either case the grantor's right is subject to execution: Wright vs. Henderson, 12 Texas 43; Id. 47; 22 Id. 338.

ILLINOIS. The validity of powers of sale in mortgages arose at an early day (A. D. 1845), and as there seemed to be "much diversity of opinion amongst the profession in that State," the subject was very fully examined by Koerner, J., and both upon principle and authority the conclusion was reached that such powers are valid both in the civil and common law: Longwith vs. Butler, 3 Gill. 32; 15 Ill. 503.

ALABAMA.-Deeds of trust are in common use: McGregor vs. Hall, 3 Stew. & Port. 397. Mortgagee may exercise power of sale: 10 Ala. 504. Deed of trust treated substantially as mortgages: Hogan vs. Lepretre, 1 Port. (Ala.) 392. In either case interest of grantor may be sold on execution: 3 S. & P. 397, supra. But see limitation in this regard as to personal property: 5 Port. (Ala.) 189. Trustee takes legal estate: 4 Ala. 483; and may eject beneficiary unless the deed restrains him: 17 Id. 743. See generally, on these instruments in this state, 4 Port. 328; 2 Stew. 401; 4 Ala. 441, 483; 8 Id. 694.

CALIFORNIA.-Mortgagee may lawfully exercise powers of sale, and titles are valid: 2 Cal. 387; 4 Id. 107; 9 Id. 643.

KENTUCKY.-Whether the mortgagee may himself legally be clothed with the power to sell, so as to bar the equity of redemption, was never directly decided in this State. See Ormsby vs. Tarascon, 3 Litt. 405, and remarks of Court on p. 409. Before any decision the Act of 1820 was passed, which provides that title will not pass without a prior decree for a sale, unless the grantor shall join in the trustee's conveyance: Ogden vs. Grant, 6 Dana 473, where this statute is construed and applied: 7 Mon. 587.

MINNESOTA-By statute a mortgage containing a power of sale may be foreclosed upon default by a public advertisement: R. S. 434, et seq. By statute the mortgagee may buy: 4 Minn. Rep. 30. The administrator of mortgagee may sign notice of sale and sell. Having given the notice, he may sell after his removal

1 Paige 57; Lawrence vs. The Farmers' Loan and Trust Company, Kern. 200; Bronson vs. Kinsie, 1 How. (U. S.) 321. Further, see cases cited in note infra.

with the consent of the special administrator: Id. 30. Notices, how advertised: Lowell vs. North, 4 Minn. 32. Change of time of sale: Id. 433. As to power of legislature to extend time and vary terms of redemption, where there are powers of sale: Id. 298, 483. Notice claiming too much by more than one-half, sale was set aside: Id. 542.

VIRGINIA.-Deeds of trust in daily use as securities. In an early but not thoroughly considered case (Chowning vs. Cox, 1 Rand. 306; 3 Leigh 654), it was held that where the creditor himself was constituted the trustee, and invested with the power of sale, he could not make a valid sale so as to bar the debtor or those claiming under him without a resort to a Court of Chancery. Admitted to be otherwise if the power is conferred upon a third person. Chowring vs. Cox, supra, recognised in the recent case (A. D. 1842) of Breckenridge vs. Auld, 1 Rob. (Va.) Rep. 154, though it is admitted in Floyd vs. Harrison, 2 Rob. 178, to be a departure

from the well-settled doctrine elsewhere.

SOUTH CAROLINA.-Sales by mortgagees under powers for debts not in familiar

use.

But such powers are "not liable to any legal objection." Per WITHERS, J., Mitchell vs. Bogan, 11 Rich. (Law) 686 (a. D. 1857).

OHIO.-Deed of trust and mortgages with sale clause in use, and are valid: Woodruff vs. Robb, 19 Ohio 212; 16 Id. 469. A judgment is no lien on the equity of the grantor in a trust deed, and it cannot be sold on execution at law: Morris s. Way, 16 Ohio 469.

TENNESSEE.-Trust sales in use: 2 Yerg. 294; 3 Hayw. 152; 6 Humph. 533; 5

Id. 612.

ARKANSAS. So in this State: 1 Eng. 269; 6 Id. 94; 3 Id. 510; 15 Ark. 55; 18 Id. 101. Grantor's interest not subject to execution sale, even though the statute subjects equitable estates to sale: 15 Ark. 55.

MICHIGAN.-Mortgages with sale clause are usual in this State: Mundy vs. Monroe, 1 Mich. 70. Manner and mode of sale regulated by statute, and two years allowed for redemption: R. S. 501; Kimball vs. Willard, 1 Doug. 217; Lee vs. Mason. Am. Law Register, vol. 2 (N. S.), p. 126. Afterwards reduced to one year, but the Act could not constitutionally apply to existing or prior mortgages : Cargill vs. Power, 1 Mich. 369. So as to Act depriving mortgagee of right to bring ejectment: Blackwood vs. Van Fleet, Am. Law Register, July, 1863, p 571. MARYLAND.-Mode of foreclosing: 7 G. & J. 143. In an early case it seems to have been considered that a sale by mortgagee did not bar the right to redeem : Turner vs. Bonehill, 3 H. & J. 99 (A. D. 1810). As to validity: 13 Md. 495. mode of security, such powers do not seem to be in very frequent use.

As a

In the States not above named, while powers of sale are occasionally resorted to, they do not seem to be in frequent use.

SEC. 4. Deeds of trust and mortgages, with power of sale, substantially identical.-A mortgage with a power of sale, and a deed of trust where the power of sale is placed in a third person, are in substance the same. Some of the cases have denied this. But those taking this view are numerous. Kent defines a mortgage thus: "A mortgage is the conveyance of an estate by way of pledge for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor" (in case of a trust deed in the trustee primarily for the creditor); "but in equity, the mortgagor remains the actual owner, until debarred by his own default or judicial decree" (4 Kent's Com. 136). He refers to instruments with powers of sale as mortgages (Id. 146). No doctrine is more invincibly established than that every instrument intended to secure the payment of money or the performance of some collateral act, is a mortgage. This is the test: "If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give to it, it is in equity a mortgage:" per STORY, J., 2 Sumn. 533; Story's Eq., § 1018; Cotterell vs. Long, 20 Ohio 464, 472; Wilcox vs. Morris, 1 Murph. (N. C.) 116; 2 Dev. (Eq.) 555; 1 Wis. 527; 5 Ark. 321; 2 Texas 1.

In Eaton vs. Whiting, 3 Pick. 484, it was expressly held that a power to sell, superadded to an instrument intended as a security, did not deprive it of the attributes of a mortgage. Until the power is executed, the right of redemption, which is the true indicium of a mortgage, exists: Bloom vs. Rensselaer, 15 Ill. 505.

Willard declares such instruments to be equally mortgages, whether they do or do not contain a power of sale: Willard's Eq. 430.

Powell speaks of them as mortgages even where the land is conveyed to trustees: Mortg., pp. 9, 10.

Speaking of a conveyance of land to a trustee as collateral security for the payment of a debt, with power to sell on default, the Supreme Court of Ohio hold this language: "The deed now in question contained all the substantial qualities of a mortgage, and nothing more. It was a mere security for a debt, to be void

if the debt were paid. The fact that the conveyance was made to a person other than the creditor, and that it contained a power to sell, does not alter its character in this particular: Woodruff vs. Robb, 19 Ohio 217. In a similar and quite recent case in another state, the Court say: "This deed of trust was given to secure these notes, and in that respect it is the same as a mortgage, and it only differs from a mortgage with a power of sale, in its being executed to a third person instead of the creditor: per WALKER, J., in Sargent vs. Howe, 21 Ill. 149. See also Fanning vs. Kerr,

7 Iowa 450; 8 Id. 404.

On the principle that the two classes of instruments were in substance legally identical, it was held that a bank, authorized by its charter to hold lands mortgaged to it by way of security," might take a conveyance to trustees, with a power of sale, to secure a debt due to it: Bennett vs. Union Bank, 5 Humph. 612. The same principle finds an illustration in another class of cases. Thus, a railroad company were empowered to raise money by mortgaging their property, and it was decided that this would authorize the execution of a deed of trust by the company: Wright vs. Bundy, 11 Ind. (Tanner) 398, 404. This doctrine is yet further exemplified in still another class of cases arising under the recording acts. Thus, in Arkansas, there was a statute prescribing the county where "mortgages" should be recorded. The Court saw no good reason why the statute did not embrace deeds of trust"-deeds of trust being generally regarded as mortgages, with power of sale. So, in Magee vs. Carpenter, 4 Ala. 469, deeds of trust were held to embrace mortgages, so far as to subject them to the same registry laws. So, in another State, the statutory regulations as to satisfying mortgages were held to include deeds of trust: Wolfe vs. Dowell, 13 Sm. & Mar. 103; Smith vs. Doe, 26 Miss. 291. Same principle: Woodruff vs. Robb, 19 Ohio 212, Crosby vs. Huston, 1 Texas 239, et seq.; McGregor vs. Hall, 3 Stew. & Porter 397.

Another illustration: In a state where mortgages usually con. tain a power of sale, and where the exercise of the power is regulated by statute, it was held that a bare authority to an agent in

a letter of attorney to execute a mortgage, there being nothing in the instrument specially excluding it, will include as an incident the power to insert a clause authorizing a sale on default: Wilson vs. Troup, 7 Johns. Ch. Rep. 25; s. c., 2 Cowen 195; 4 Kent's Com. 147.

In fine, the attributes of deeds of trust, and mortgages with a power of sale, are the same in the following essential particulars:1. They are both intended as securities, and therefore are, in a legal sense, mortgages.

2. In both, if not controlled by statute, the legal title passes from the grantor, but in equity he is, before the foreclosure, considered the actual owner.

3. In both, and as broadly in the one case as in the other, the grantor has the right to redeem; in other words, has an equity of redemption,1 which can only be barred by a valid execution of the power or by judicial decree."

1 There are a few cases which take a different view. Thus, in Mississippi, in one case the Court remark: "The interest of a grantor in a deed of trust is not analogous to the interest of a mortgagor, and is not the subject of a lien or execution at law:" McIntyre vs. Agricultural Bank, 1 Freeman Ch. Rep. 105. So in Arkansas: 15 Ark. 55. In this case the Court declares that a deed of trust differs from a mortgage in this, that "the equity of redemption, as well as the legal estate, is conveyed by the deed" (of trust), "or if reserved is dependent upon a contingency which never happens until the trust sale." It is a mistake to suppose that the equity of redemption is conveyed. In a later case, the same Court say that the grantor may redeem by paying the debt: Hannah vs. Carrington, 18 Ark. 85; 8 Ala. 694 That it is not conveyed: see Harrison vs. Battle, 1 Dev. Eq. 541; 2 Ired. (Law) 129; 7 Id. 418; 1 Jones (Law) 169. In Crittenden vs. Johnson, 6 Eng. 94, overruling State vs. Lawson, 1 Id. 269, the Court, in defining the difference between the two classes of instruments, use loose and even inaccurate language.

2 Though there be a power of sale, the creditor may yet proceed judicially to foreclose. The power of sale is a cumulative remedy only, and does not oust the inherent equitable jurisdiction: Bennett vs. Union Bank, 5 Humph. 612; Byron vs. May, 2 Chand. (Wis.) 103; Hipp vs. Hutchett, 4 Texas 20; 15 Id. 267; Walton vs. Cody, 1 Wis. 420; 2 Id. 100; Mariott vs. Givans, 8 Ala. 694; 7 Id. 823; 21 Id. 573; 24 Id. 544; Willard Eq. 450. If from any cause the prescribed notice cannot be given, a resort to equity is the proper and indeed necessary course: Sullivan vs. Hadley, 16 Ark. 129; Dutton vs. Cotton, 10 Iowa 408. Under the New York statutes, the procedure must be in Court on all mortgages except those conditioned for the payment of money: Ferguson vs. Ferguson, 2 Comst. 360; Jackson vs. Turner, 7 Wend. 458.