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more nor less than a mortgage, leaving the title in the grantor and giving the grantee a mere security for his debt, to be enforced in the same manner as an ordinary mortgage.' Such a deed will be declared to be a mortgage upon purely equitable grounds only, and the burden of showing this is upon the party who asserts that the deed is a mortgage. The evidence must be clear and conclusive and leave no doubt upon the question of the real intention of the parties.'

17. Defenses The Mortgagor May Show an Eviction in Bar of the Action.-In an action by a mortgagee for the recovery of the possession of mortgaged premises, against the mortgagor, the latter may set up in bar of the recovery an eviction by one having a paramount title; and although the mortgagor has become the purchaser under the paramount or hostile title, and remains in possession, the mortgagee can not recover. Like a tenant he may show that his landlord's title is at an end."

§ 18. Statute of Limitations-Mortgagor and Mortgagee -If the Debt Is Barred the Right of Possession Is Barred. -Under the common law, as announced by the courts of England, as well as of the various States of the Union, the failure of the mortgagee to make an entry, to receive interest on the debt, or in some other mode to procure a recognition of the validity of his debt within the statutory period of limitation, a payment will be presumed, and a foreclosure defeated, both at law and in equity. Specialty debts and contracts for the payment of money were not embraced in the act of 21 James I, and as mortgages executed in England usually contained a covenant for the payment of the mortgage debt,

Wis. Cent. R. Co. v. Wis. Riv. Ld. Co., Wis.; 36 N. W. Rep. 837 (1888); Schriber v. Le Clair, 66 Wis. 528; 29 2. W. Rep. 570, 889; Bernstein v. Humes, 71 Ala. 235; Hoyt v. Fass, 64 Wis. 279; 25 N. W. Rep. 45.

2 Henley v. Hotaling, 41 Calif. 22; Phillips v. Croft, 42 Ala. 477; Kent v. Lasley, 24 Wis. 654; Price v. Karnes, 59 Ill. 276; Fullerton v. McCurdy, 55 N. Y. 637; see, also, Villa v. Rodriguez, 12 Wall. (U. S.) 323; Littlewort v. Davis, 50 Miss. 403; O'Neil v. Capelle, 62 Mo. 202; French v. Burns, 35

Conn. 359; Weide v. Gehl, 21 Minn. 449; Steinruck's Appeal, 70 Pa. St. 289; Hills v. Loomis, 42 Vt. 562; Kent v. Agard, 24 Wis. 378; Carr v. Carr, 52 N. Y. 251; Hassam v. Barrett, 115 Mass. 256; Horn v. Keteltas, 46 N. Y. 605, 251; Murray v. Walker, 31 N. Y. 399; McBurney v. Wellman, 42 Barb. (N. Y.) 390; Dodge v. Wellman, 43 How. Pr. (N. Y.) 427; Odell v. Montross, 68 N. Y. 499.

3 Jackson v. Vredenburgh, 5 Wend. (N. Y.) 44.

the mortgage, and the bond to secure which it was given, were held to be without statutory bar.

But upon principle and the analogies of the common law, the debt was presumed to have been paid or otherwise discharged, if no payment was made on the debt, or possession of the mortgaged premises was not taken, or some other act done by which it appeared the parties recognized the debt as subsisting within the statutory period after its maturity. The mortgagee under such a mortgage had a right to maintain an action for the recovery of the money on the covenant in his mortgage, or to bring ejectment and be admitted to the possession of the mortgaged premises and the perception of the rents and profits until he had satisfaction of his debt.

Chief Justice Kent lays down the rule that the mortgagee may be barred by the lapse of time; and if the mortgagor has been permitted to possess and enjoy the estate without account and payment of principal or interest, or claim for a given period, which is usually twenty years, the mortgage debt is presumed to be extinguished. He further says: "The period of twenty years is taken by analogy to the period of limitation at law, for tolling the entry of the true owner."" This doctrine runs through the English and American adjudicated cases, in both the courts of law and equity. The cases proceed upon the principle, that, while the mortgage is an incident of the debt-only a security for the money-yet by it, a right to recover the possession of the premises, as a means of satisfaction, is conferred by the mortgage, and to enforce that right, ejectment may be maintained as long as a recovery may be had by action on the debt.'

The action of ejectment may be maintained on a mortgage in Vermont, and the mortgaged lands recovered; though the statute of limitations has run on the debt. Reed v. Shipley, 6 Vt. 602.

A mortgagor can not recover in ejectment against a mortgagee who is in adverse possession after the law day of the mortgage; nor can one who claims under the mortgagor recover against one holding by privity of title with the mortgagee, unless the conveyance is void. Jones v. Roper, 86 Ala. 210; 5 So. Rep. 459 (1889).

14 Kent's Com. 189.

Walker, C. J., in Pollock v. Maison, 41 Ill. 519 (1866); Hillary v. Wallace, 12 Ves. 239; Cook v. Lattan, 2 Sim. & Stu. 154; Wilson v.

Withesley, Bull. N. P. 110; Hughes v. Edwards, 9 Wheat. 489; Giles v. Baremore, 5 Johns. Ch. 545.

Pollock v. Maison, 41 Ill. 519 (1866).



19. The Subject Further Discussed.-The authorities all concur in holding that the mortgagee may make entry after condition broken, and some of them even hold that he may enter on the execution of the mortgage and before there is any breach; also, that the right of entry is tolled by the statute of limitations, as in other cases. And courts of equity follow the law, in regard to such a bar, and hold that, by analogy, when the right of entry under the mortgage is barred, the right to foreclose is usually also barred upon the presumption that the debt has been discharged. And bonds and other sealed instruments for the payment of money, under the English decisions, were governed by the same presumption after such a lapse of time after their maturity. We may then safely adopt the rule, that, where the entry is tolled, the foreclosure is barred.

The object and effect of all limitations of real actions is to toll the entry or bar the action, and this is true whether the entry is barred in seven or in twenty years. But under our legislation the effect would be very different on the security for the debt. In sixteen years the debt is barred in Illinois; hence, to hold that the entry is taken away after that time, could produce no injury to the creditor; but to hold the entry was barred, and the right to foreclose was gone in seven years, would be to deprive him of the security of his debt nine years before it would be barred. But to hold, that, when the debt is barred, then the entry is barred, and the right to foreclose is gone, is only in analogy to the English and American rule that, when the presumption is raised that the debt is extinguished, the entry will be tolled. In a Vermont case the English rule was applied. It was there held that, where the right of entry is gone, in fifteen years under their statutes, a foreclosure by bill is also barred.


The court say: "The presumption of payment of a mortgage becomes absolute, after the lapse of fifteen years, if there is no entry, or payment of interest, and is conclusive unless refuted by distinct proof." If, because the entry under the mortgage as one of the modes of foreclosing or obtaining satisfaction may be held to bar the other modes of foreclosing, it is manifestly more reasonable to hold that where the debt, the principal thing, is gone, the incident, the mortgage, is gone

Whitney v. French, 25 Vt. 663.

also, and that a foreclosure in any mode can not then be had, either by ejectment, scire facias, bill in equity or otherwise.

If a bar of the incident should bar the principal, then much more should a bar of the debt be a bar to its incident. A payment, release or discharge of the debt, extinguishes the mortgage. If a judgment or decree in bar of the debt were rendered in favor of the mortgagor, no one would for one moment hesitate to say that it might be interposed as a complete bar to a foreclosure in any of the various modes which may be adopted. Then why not permit the bar that would defeat a recovery on the debt be interposed to defeat a foreclosure? 1 It was so hold in Illinois, and we think the rule is sustained by the analogies of the law, and is not opposed to the principles of justice."


While, therefore, an action of ejectment may be maintained, or a bill exhibited, or a judgment recovered by scire facias on the mortgage, at any time before the statute of limitations has barred the debt, where that has occurred we believe the bar of the statute may be successfully interposed in an action of ejectment by the mortgagee.'

§ 20. A Distinction Which Does Not Appear in the Books. -There seems to be great propriety in a distinction which might be made, though the books do not appear to recognize it, between a mortgage executed for money loaned, or for the performance of some other obligation, where the consideration passes from a stranger to the owner of the land mortgaged, and a mortgage executed to secure the payment of the purchase money of the land itself, which are quite as common in the transactions of the day as those actually given on the loan of money. In the first class of cases, a mortgage may properly be regarded as an incident or security, merely for the repayment of the money actually loaned, the lender never having had an interest in the land mortgaged as security.

A mortgage of the other description, given to secure the payment of the purchase money of the land itself, ought to be

1 Waller, C. J., in Pollock v. 67 Ill. 170; see also Clinton Co. v. Maison, 41 Ill. 518 (1866). Cox, 37 Iowa, 570; Ewell v. Daggs, 108 U. S. 143.

2 McMillan v. McCormick, 117 Ill. 79 (1883); Harris v. Mills, 28 Ill. 44; Midley v. Elliott, 62 Ill. 532; Flower v. Ellwood, 66 Ill. 438; Darst v. Bates, 95 Ill. 493; Hogan v. Parsons,

3 Pollock v. Maison, 41 Ill. 516 (1867); Medley v. Elliott. 62 Ill. 533; McMillan v. McCormick, 117 Ill. 79 (1803).




regarded as something more than a mere security for money loaned, no money being in fact loaned. The vendor of land, by his deed, clothes his grantee with power to enter and take possession of the land-to grant it away to strangers-to deprive the vendor of all use of it. The mortgage is executed to secure the vendor in the purchase money, on the promise of which, at a certain day, he surrenders the possession to the mortgagor. Now, different considerations operate upon the parties in these In the first, the mortgagee only stipulates for the return of his money; his only consideration is, that the security shall be ample, and it is, in practical life, rarely, if ever, understood by the parties to such a mortgage, to pass the title in fee of the land to the mortgagee, so as to vest in him the power to enter on condition broken, or bring ejectment and turn the mortgagor out of possession. The debt may be very trifling in comparison to the value of the land mortgaged, and so long as its ultimate payment is fully secured, such mortgagee should be content with the usual remedies allowed him by the law, to proceed by scire facias under statutes, or by bill in equity for a strict foreclosure, or for a foreclosure and sale or by suit. on the note, and thus receive the full benefit of what the parties intended should be security. In justice and equity his principal right is to his money only.

In the other class of cases, and they are perhaps the most numerous, something more than mere security must be in contemplation of both parties. The title to the fee ought not to be held as having passed absolutely out of the vendor. It is in him when he sells, and should be considered as passing out of him only by the payment of the purchase money. There would seem to be a great propriety in conceding to such a mortgagee all the rights the true owner of the fee can exercise-the right of entry, or the action of ejectment on condition broken, and not before. It is his estate, the title to which he has never in fact parted with, except upon a condition which has not been performed. It is, then, but sheer justice that the possession should be restored to him. But the law seems to make no distinction in these cases.'

21. The Mortgagee's Remedy.-The remedy of the mortgagee under his mortgage upon breaches of the condition, is not uniform in the American States. In the majority of these 1 Breese, J., in Carroll v. Ballance, 26 Ill. 17 (1861).

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