This was an action of trespass, quare clausum, fregit. The plaintiff proved himself in possession of the locus in quo, and showed a title derived under a judgment against one James Leonard, who, it appeared, had mortgaged the land to Joshua Mersereau. By the pleadings, the question presented to the court is, whether the freehold was in the plaintiff, who had purchased the equity of redemption, under the judgment against the mortgagor, or in Joshua Mersereau, the mortgagee.
Courts of law, both here and in England, have gone very fax towards, if not the full length of, considering mortgages, at law, as in equity, mere securities for money; and the mortgagee as_,_ having only a chattel interest. Lord Mansfield (Doug. 610.)'* says, a mortgagee, notwithstanding the form, has but a chattel, and the mortgage is only a security; that it is an affront to common sense to say the mortgagor is not the real owner. Mortgages are not considered as conveyances of land within the statute of frauds, and the forgiving the debt, with the delivery of the security, is holden to be an extinguishment of the mortgage. Mortgages will pass by a will not made with the solemnities of the statute of frauds. The assignment of the debt, or forgiving it, even by parol, draws the land after it, as a consequence. The debt is considered the principal, and the land as an incident only.
The interest of the mortgagee cannot be sold under execution. It is unnecessary to go into an examination of the cases on this subject; they have been repeatedly reviewed by this court. (3 Johns. Cases, 329. 1 Johns. Rep. 590. 4 Johns, Rep. 42.) The light in which mortgages have been considered, in order to be consistent, necessarily leads to the conclusion Vthat the freehold must be considered in the plaintiff, and he, of course, is entitled to judgment.
Judgment for the plaintiff.