exist; thus, "excepting a mortgage to, &c., dated, &c., to secure the sum of, &c." Or, "excepting a right in the owners of the adjoining land to have and maintain a drain running, &c."

Sometimes quitclaim deeds are made with this warranty: "And I will, and my heirs, &c. shall, warrant and defend, &c. to the said C. D., &c. against all claims and demands of myself, or of any persons deriving title by or through me." Such a warranty will hold the grantor and his heirs liable for any encumbrance made or suffered by him, but not for any other.

As the usual covenants of a warranty deed are made with the grantee, "his heirs and assigns," if such grantee conveys the land only by grant and quitclaim, without warranty, his grantee takes the benefit of all the previous warranties to which this last grantor was entitled. Thus, A sells with warranty to B; B quitclaims to C; C is ousted by D, who proves that he has a better title than A. C now may sue A on A's warranty to B, which was transferred to C.

Sometimes estates are conveyed on condition; but this is a very catching thing, and nobody should ever take such a deed if he can help it. It is hardly safe to have the word condition in a deed. The reason is, that if an estate is conveyed on condition, and the condition is broken, the estate is lost. Thus, if land is sold on a certain street with this clause: "And the land aforesaid is sold on condition that neither the grantee, nor any one deriving title from or through him, shall build within ten feet of the street." If any owner build six inches over the line, by mistake, or extend his building by an addition of a foot or so in any part, the whole land, house and all, might be lost and forfeited to the grantor. And the grantor can always secure the proper effect of such a condition by a clause like this: "Provided, however, and it is agreed, that if the said C. D., &c. shall build, &c., the said A. B., or his heirs or assigns, may enter upon the land hereby conveyed, and abate and remove any and all buildings, or parts of buildings, which stand nearer said street than the limit of ten feet aforesaid ";-or some similar clause, as a lawyer would frame it to suit the case.

By a rule of law which originated in this country, and is

now universal here, if a married woman holds lands, the husband and the wife, joining in one deed, may convey them. In some of our States such a deed is regulated by statutes, which of course are to be regarded. And in many of them the wife now has peculiar powers by statute, as stated in our chapter on Partics, Section III., on Married Women. It may be necessary that she should renounce or release certain rights, as of homestead, &c., under these statutes, or the grantee will not take a clear title; and in such case proper words should be inserted. This is now the custom, for example, in Massachusetts. She should always release her right of dower, unless it is intended that she should preserve it. Her signing the deed with her husband does not release anything, even if it could be proved that such was her intention, unless the deed contains words expressing her intention to release or convey such or such a right or interest. In most printed forms there is a blank left to be filled up for this purpose.

It may be well to remark, that bargains are often made for the purchase and sale of real property. If the contract be oral only, it has no force in any court. If it be in writing, either party may, in a court of law, recover damages from the other, if he refuses to perform his contract. Or, in a court of equity, he may compel the other to execute his contract. Not, however, if there was fraud in the contract, or oppression, or gross misrepresentation, or intentional and important concealment. But a mere inadequacy of price all things being honestwill not prevent a court of equity from enforcing such an agreement.

CHAPTER XXV.

OF MORTGAGES.

SECTION I.

OF MORTGAGES OF REAL ESTATE.

THE purpose of a mortgage is to give to a creditor the security of property. It is very similar to a pledge, although not the same thing.

Mortgages are now made of personal property, as well as of real property; but we will first consider a mortgage of real property; or, as it is usually called, a mortgage deed.

This is a deed conveying the land to the creditor as fully, and in precisely the same way, as if it were sold to him outright; but with an addition. This consists of a clause inserted before the clause of execution, to the effect, that, if the grantor (the mortgagor) shall pay to the grantee (the mortgagee) a certain amount of money at a certain time, then the deed shall be void. It is usually expressed in words like these:"Provided nevertheless, that if the said A. B. (the grantor), his heirs, executors, or administrators, shall pay to the said C. D. (the grantee), his executors, administrators, or assigns, the sum of $- with interest (semiannually, or otherwise as agreed on), on or before the then this deed, and also a certain promissory note signed by said A. B., whereby said A. B. promised to pay said C. D., or his order, the said sum at the said time, shall both be void; and otherwise shall remain in full force."

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In New York it is more frequent to make a bond, to be secured by the mortgage; and the proviso should be altered accordingly, and should also be made to express any other terms agreed on. Some of these will be spoken of presently. In law, everything is a mortgage which consists of a valid conveyance, and a promise, or agreement, which may be on a

distinct piece of paper or instrument, providing that the conveyance shall be void when a certain debt is paid, or the act performed for which the mortgage is security.

The mortgagee has now a proper title; but it is subject to avoidance by payment of the debt. Until such payment, the land is his; and all the mortgagor owns in relation to it is a right to pay the debt and redeem the land. Hence, a mortgagee has instantly as good a right to take possession of the land (unless the deed provides that the mortgagor may retain possession) as if he were an outright purchaser.

Formerly, a mortgagor had a right to redeem his land. only until the debt became due and unpaid; for if he did not pay the money when it was due, he had no further right. But courts of equity, deeming this too hard, allowed him a further time to redeem it. And courts of law adopted the same rule, which is also expressed in the statutes of all our States. This right to redeem is called a right in equity to redeem, or, more briefly and commonly, an equity of redemption; which all courts now regard and protect. The mortgagor may sell this equity of redemption, or he may mortgage it by making a second or other subsequent mortgage of the land, and it may be attached by creditors, and would go to assignees as a part of his property if he became insolvent.

The law regards this equity as so important, that it will not permit a party to lose it by his own agreement. Thus, if a mortgagor agrees with the mortgagee, in the most positive terms, or in any way he can contrive, or for any consideration, that he will have no equity of redemption, and that the mortgagee may have possession and absolute title as soon as the debt is due and unpaid, the law sets aside all such agreements, and gives him his equity of redemption for three years.

Within a few. years, however, a way has been found to effect this purpose indirectly, which the law sanctions. Many persons object to lending their money on mortgage, because they will have to wait three years after the debt is due before the land can be certainly theirs. But it is now quite common for the mortgage deed to contain an agreement of the parties, that if the money is not paid when it is due, the mortgagee may, in a certain number of days thereafter, sell the land, (providing also

such precautions to secure a fair price as may be agreed on,) and, reserving enough to pay his debt and charges, pay over the balance to the mortgagor.

The three years of redemption do not begin from the day when the debt is due and unpaid, unless the mortgagee then enters and takes possession for the purpose of foreclosing the mortgage, as the legal phrase is; by which phrase is meant extinguishing the equity of redemption. If the debt has been due a dozen years, the mortgagor may still redeem, unless the mortgagee has entered to foreclose, and three years have since clapsed.

He may make entry for this purpose in a peaceable manner, before witnesses, as pointed out in the statutes regulating mortgages, or by an action at law.

If the mortgagor redeems, he must tender the debt, with interest, and the lawful costs and charges of the mortgagee; but he will be allowed such rents and profits as the mortgagee has actually received, or would have received but for his own fault.

It is commonly thought that the mortgagor has a right to retain possession until the debt is due and unpaid, and in fact he usually does so. But we have seen that the mortgagee has just as much right of immediate possession as a buyer; and therefore, if it is not intended that he should have possession at once, the mortgage deed ought to contain a clause to the effect, that the mortgagor may retain possession as long as he pays instalments and interest as due, and complies with his other agreements.

One of these other agreements, which is now very common, is that the mortgagor shall keep the premises insured in a certain sum for the security of the mortgagee; and if there be such an agreement, it should be expressed in the deed. Otherwise, if the mortgagee insures the house, he cannot charge the premium to the mortgagor.

If a mortgagor erects buildings on the mortgaged land, or puts fixtures there, and the mortgagee takes possession of the land and purchases the mortgage, he gets all these additions. If the mortgagee puts them on the land, and the mortgagor redeems, he gets the benefit of them all, without paying the mortgagee for them.