2 Neb. 20 | Neb. | 1873
The first question presented to us is, whether a payment was made by the defendant upon these securities which will take the case out of the Statute of Limitations. The circumstances are not very creditable to the plaintiff. He sought and obtained the night’s lodging with the view of overreaching the defendant, and, without his consent, gaining an advantage; and, when he disclosed the object of his visit, the defendant did not consent to his paying for his lodging by a credit on the debt. The case wants the very first element of a valid payment to take the case out of the statute, which is an intelligent, or at least conscious, consent on the defendant’s part, that what was due to him should be applied on his debt.
The next, and a very important, question is, Was the mortgage barred when the statute ran against the note ? In all proceedings to foreclose mortgages in this State, the decree is, that the mortgage be foreclosed, and the mortgaged premises be sold to pay the amount due upon the mortgage debt. A strict foreclosure is
A mortgage at common law may be defined to be an estate created by a conveyance absolute in its form, but intended to secure the performance, of some act, such as the payment of money and the like, by the grantor, to some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance.
The estate becomes effectually vested in the grantee by the mortgage if the grantor or mortgagor fail to perform the condition of the mortgage. Fray v. Cheney, 14 Pick., 399; Brigham v. Winchester, 1 Metcalf, 390; Thrall v. Trask, 7 Wisconsin, 566.
The possession of the mortgaged premises may be in the grantor or grantee, according to the terms of the deed; though ordinarily it is retained by the grantor. If there is no provision in the deed as to possession, the mortgagee may lawfully enter and hold possession of the premises until condition performed; and, if the mortgagor failed to perform the condition of the mortgage, his estate was, by the common law, wholly defeated and gone. Mortgages had become common in the time of Henry VI. and Edward IV. Mr. Donell ascribes their origin to the Jews: others derive them from estates upon condition at the common law. And at common law, if the payment was not made at the time fixed, the estate, by the breach of the condition, became forfeited; and the mortgagee thereupon held the same as absolute and irredeemable. 1 Spence, Eq. Jur., 602; Story’ Eq. Jur., sect. 1004.
The right to redeem after condition broken made its way slowly against the notions of the common law; though a strict forfeiture in case of a mortgage was condemned by the Council of Lateran, A.D. 1178, during the reign of Henry II. It is said, Parliament, in 1391, refused to admit a redemption after forfeiture; and such estate continued irredeemable during the reign of Edward IV., who died in 1783.
In Goodall's case, 39 and 40 Elizabeth, the Court of King’s Bench held that an estate was lost to a mortgagor, he having failed to perform the condition truly and effectually. 5 Rep., 96.
The disposition to save the debtor from loss if he was willing to indemnify his creditor on account of his debt, which had grown up ,under the influence of, the Courts of Chancery, continued to gain strength until the time of James I., when the Court of Equity decreed a redemption after forfeiture; and finally, in the reign of Charles I., it became settled that the payment, or tender, after the day, should have the same effect in saving the estate of the mortgagor from forfeiture as if done before the day of payment. A case of this kind is decided in 1 Rep. in Chancery, 32, Howe v. Virgores. The right to redeem mortgaged premises after they had, in the view of the common law, been forfeited by a failure to perform the condition of the mortgage, gave
This may reconcile some seeming discrepancies which occur in defining the right of the mortgagors and mortgagees. In law, the mortgagee held the freehold, and might bring an action of ejectment, and recover the possession of the land mortgaged, against the mortgagor. He might devise his interest by will as real estate, or it would descend by common law to his heir. On the contrary, in equity, the land, or mortgaged estate, is a pledge. The mortgagee holds the mortgaged estate only as a security for a debt; and, like a debt, it was treated only as an interest of a personal nature ; and, if the mortgagee died, the mortgage debt and security went to his executor, who might receive the same, and compel the heir to release to the mortgagor without being paid a cent. Williams on Real Property, 353, 354. The legislature of this State have, by enactment, declared that mortgages in this State shall be viewed only in the aspect created by and known to equity, simply as a pledge or security of a debt. The true question to be determined is, Is there a debt subsisting between the parties .capable of being enforced in any way in rem or personam ? For it would seem clear that the want of liability of the grantor to pay the debt secured by the mortgage would necessarily release all right of recovery or liability upon the mortgage. The debt secured by the mortgage is the principal thing: the mortgage is simply an incident to the principal thing. The right to recover on the principal thing having ceased to exist,
Judgment reversed.