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Characters
ascribed to
the mortgagor.

ditor, trustee and cestui que trust, have been applied to this relation, according to their different rights and interests, before or after the condition forfeited, before or after foreclosure, and according as the possession was in the mortgagor or mortgagee. "Quo teneam vultus mutantem Protea nodo?" (m). Sometimes the relation is viewed as the mortgagor or the mortgagee is in or out of the possession of the property mortgaged (n). The characters however of mortgagor and mortgagee are as well known, and their rights, powers and interests as well settled, as any in the law (o), and the names mortgagor and mortgagee most properly characterize the relation (p).

A mortgagor has had ascribed to him a variety of different characters in which there existed some points of resemblance, when it was not very material to ascertain what his powers or interests were, or to settle with any great precision in what respects the resemblance did and in what it did not exist. designated a tenant for years (q), quodam modo or quasi tenant at

Thus he has been

tenant at will (r), will (s), tenant at

sufferance (t); but having a greater resemblance to a tenant at sufferance than to a tenant at will (u), to the mortgagee, and as becoming, by a conveyance by the mortgagee, tenant at sufferance to the assignee (v). He has also been designated as the servant (x), the bailiff or agent (y), as resembling a person who has executed

(m) Hor. i., Epl. 1, 90; 2 Jac. & W. 182.

(n) 4 Mee. & W. 413.

(0) Per Buller, J., Birch v. Wright, 1 T. R. 383.

(p) 2 Jac. & W. 182.

(4) Ponsely v. Blackman, Cro. Jac. 659; 4 Mee. & W. 413; 3 Bing. N. C. 508.

(r) Smartle v. Williams, Salk. 245; Keech v. Hall, Doug. 22; Leman v. Newnham, 1 Ves. 52.

(8) Moss v. Gallimore, Doug. 282; 2 Mer. 359; 2 Jac. & W. 234; 9 Ex. 22; Doe d. Fisher v.

Giles, 5 Bing. 421.

(t) Bridgm. 489; Thunder v. Belcher, 3 East, 451; Partridge v. Bere, 5 Barn. & Ald. 604; 1 Dow. & R. 272; Doe d. Roby v. Maisey, 8 B. & C. 767.

() Per Littledale, J., 9 B. & C. 253.

(v) Smartle v. Williams, Salk.

245.

(x) 1 H. Bl. 118, n.

(y) Arguendo, Keech v. Hall, supra; per Parke, J., Pope v. Biggs, 9 B. & C. 245.

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a statute or recognizance (z), as being to some intents and for some purposes a cestui que trust (a), and as the receiver (b) of the mortgagee. But in Ex parte Wilson (c), Lord Eldon said, admitting the decision of Moss v. Gallimore," I have been often surprised by the statement that a mortgagor was receiving the rents for the mortgagee. A mortgagee never can in this court make the mortgagor account for the rents for the time past. There is not an instance that a mortgagee has per directum called upon the mortgagor to account for the rents. The consequence is, that the mortgagor does not receive the rents for the mortgagee. But it would be productive of much error, if it were to be concluded that the resemblance was complete, in every point, to any one of the ascribed characters" (d).

fore 3 & 4

Will. 4, c. 27.

The possession by the mortgagor was considered His possession before the 3 & 4 Will. 4, c. 27, as by the permission and acts beof, and as respects the Statute of Limitations, not adverse to, the mortgagee (e). So also the acts of the mortgagor, assented to by the mortgagee, are considered as the acts of the mortgagee (ƒ); and a lessor having mortgaged his reversion, and being permitted by the mortgagee to continue in the receipt of the rent incident to that reversion, is, presumptione juris, authorized, if necessary, during such permission to realize by distress, and to distrain for the rent in the name of and as the bailiff of the mortgagee (g).

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the mortgagec.

Although before the 3 & 4 Will. 4, c. 27, as will be His possession presently seen, the possession of the mortgagee for as a bar to twenty years, without acknowledgment of the title of the mortgagor, was considered a bar to the latter, even in equity, yet even there, before that statute, the mere

(z) Per Best, C. J., 5 Bing. 427.

(a) 4 Bli. 96; 1 Mad. 278, 279, 281.

(b) Moss v. Gallimore, supra. (c) 2 Ves. & B. 252.

(d) 2 Jac. & W. 182.

(e) Hall v. Doe d. Surtees, 5 B. & Ald. 687.

(f) Per Tindal, C. J., 7 Bing.

599.
(g) Trent v.

Hunt, 9 Ex. 14.

...

possession by the mortgagor for the like period without any recognition of the mortgage, or any payment or demand of interest, was considered not a bar to the mortgagee (h). But in Christophers v. Sparke (i), Sir Thomas Plumer, M.R., although declining to decide the point, said, he could not accede to the doctrine that no length of time will operate against a mortgagee who has been out of possession without claim or acknowledgment. . . . With respect to the mortgagor, it is clear that his equity is shut out by the mortgagee being in possession for twenty years without acknowledgment; then why should not this be reciprocal? Why should it be necessary for the relation to be kept alive in the one case and not in the other. The point, in fact, was not decided in either of the cases mentioned; they turned upon particular circumstances. The question indeed did not arise in the case before his honor. The heir of the mortgagor was in receipt of part of the rents, but the land was in the actual possession of a prior mortgagee, under a title commencing in 1788, seven years before the deed under which the plaintiff claimed, and the possession since 1788 had uninterruptedly gone along with the title. The real question in the case was as to the existence of the debt, and, if it existed, whether the circumstances were not sufficient to raise the presumption that it had been satisfied. In Seager v. Aston (k), Stuart, V.-C., said the principle of Christophers v. Sparke-a case of the highest importance, and decided upon the soundest principles-is, that the mortgagee never took actual possession of the mortgaged estate, but allowed possession of that estate, which, as between mortgagor and mortgagee, and by the rules of the court, might become adverse possession, to continue so long that there was

(h) See Leman v. Newnham, 1 Ves, sen. 51.

(i) 2 Jac. & W. 234.

(k) 3 Jur., N. S. 481, 483.

by effluxion of time an extinguishment of the right to recover the mortgaged estate. At law, however, subsequently to Christophers v. Sparke, such possession by the mortgagor, in the absence of anything to the contrary, was presumed to be with the permission of, and therefore no bar to, the mortgagee (1).

mortgagee.

The mortgagee has been described to be the holder Position and of the property mortgaged as a security for his mort- character of a gage money, and, subject thereto, a trustee for the mortgagor (m); not however to all intents and purposes, and subject to the same rules by which a court of equity restrains persons filling a fiduciary character from having any dealings for their own benefit (n), but is only to some intents and for some purposes, in some sense and in some sort likened to, a trustee -not that he can with any correctness of speech be called a trustee. In truth, till the debt is paid off he cannot be considered at all as a trustee (o); for every person in whom the legal estate is vested, with a beneficial interest for another person, in a sense, is a trustee for that person (p). On a demand and tender of the principal and interest he is a trustee to convey the estate to the mortgagor (q). But it is only in a secondary point of view, and under certain circumstances, and for a particular purpose, that the character of trustee constructively belongs to a mortgagee. No trust is expressed in the contract; it is only raised by implication, in subordination to the main purposes of it, and after that is fully satisfied, its primary character is not fiduciary. It is a contract of a peculiar nature, by which, under certain conditions, the mortgagee becomes the purchaser of a security and pledge, to hold for his own use and benefit.

(1) Hall v. Doe d. Surtees, 5 B. & Ald. 687.

(m) Jickling's Analogy, 70; 1 Mad. 278; 2 Ball & B. 575,

(n) 8 Hare, 221.

(0) 1 Myl. & K. 287.
(P) 4 Bli. 96; 8 Hare, 220.
(q) Ib. 97.

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acquires a distinct and independent beneficial interest in the estate; he has always a qualified and limited right, and may eventually acquire an absolute and permanent one to take possession, and he is entitled to enforce his right by adverse suit in invitum against the mortgagor; all which can never take place between trustee and cestui que trust. They have always an identity and unity of interest, and are never opposed in contest to each other. In general a trustee is not allowed to deprive his cestui que trust of the possession, but a court of equity never interferes to prevent the mortgagee from assuming the possession. In this the contrast is strongly marked. The interference is refused because the mortgagor and mortgagee do not, in this instance, stand in the relation of trustee and cestui que trust. The ground on which a mortgagee is, in any case, and for any purpose, considered to have a character resembling that of a trustee, is the partial and limited right which, in equity, he is allowed to have in the whole estate legal and equitable. He does not at any time possess, like a trustee, a title to the legal estate, distinct and separate from the beneficial and equitable. Whenever he is entitled at all to either he is fully entitled to both, and to the legal and equitable remedies incident to both; but in equity his title is confined to a particular purpose. When the money due to him is paid, his duty is to reconvey the estate to the person entitled to it; it never remains in his hands clothed with any fiduciary duty. When paid off, the mortgage title ends, and then, and not before, the implied trust, to surrender the estate to the person entitled to demand it, begins (r). All the cases treat the mortgagee, as soon as he is paid, as becoming a mere naked trustee, holding the legal estate for the benefit of the cestui que trust, the mortgagor (s). And yet there

(r) 2 Jac. & W. 183, 184.

(s) 1 Mad. 278, 279, 281; 1 Myl. & K. 287.

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