dition was in the nature of a penalty, which ought to be relieved against, and that the mortgagor had an equity to redeem on payment of principal, interest, and costs, notwithstanding the forfeiture at law.

Against the introduction of this novelty, the judges of common law strenuously opposed themselves; and though ultimately defeated by the increasing power of equity, they nevertheless in their own courts still adhered to the rigid doctrine of forfeiture, and in the result, the law of mortgage fell almost entirely within the jurisdiction of equity. There is no record of the time when this equity was first granted. In the before-mentioned cases of Wade (a) [and Goodall (b), which were decided towards the end of the reign of Queen Elizabeth, the parties do not seem to have entertained the idea of any remedy existing for the mortgagor's relief, if the forfeiture was established at law, although Tothill mentions a case in the 37th year of Elizabeth's reign (c), in which the equity was decreed; and it must soon after this time have been generally in practice, for there is a case decided in the first year of Charles the First (d), in which the doctrine seems fully admitted. It was a question as to a mortgage term which had been forfeited by non-payment according to the condition; and the Court held, that although the money was not paid at the day, but afterwards, yet the term ought to be void in equity, as well as

(c) Langford v. Barnard, Tothill, 184.

(d) Emanuel College v. Evans, 1 Rep. in Chancery, 10.

on a legal payment it would have been void at law. In the intermediate reign of King James the First, the Courts of Equity became established in power, and the same period may be reasonably assigned as that in which the doctrine of equity of redemption was fully recognised.

No sooner, however, was this equitable principle established, than the cupidity of creditors induced them to attempt its evasion, and it was a bold but necessary decision of equity that the debtor could not, even by the most solemn engagements entered into at the time of the loan, preclude himself from his right to redeem; for in every other instance probably, the rule of law, modus et conventio vincunt legem, is allowed to prevail. In truth it required all the firmness and wisdom of the eminent judges who successively presided in the Courts of Equity, to prevent this equitable jurisdiction being nullified by the artifice of the parties.

But those Courts, looking always at the intent, and not at the form of things, disregarded all the defences by which the creditor surrounded himself, and laid down as plain and undeviating rules (e), that it was inequitable the creditor should obtain a collateral or additional advantage through the necessities of his debtor, beyond the payment of principal, interest, and costs; and they established as principles not to

(e) Newcomb v. Bonham, 2 Vent. 364; 1 Vern. 7, 214, 233; Howard v. Harris, 1 Vern, 192; Jason v. Eyre, 2 Ch. Ca. 33.

be departed from, that once a mortgage always a mortgage; that an estate could not at one time be a mortgage, and at another time cease to be so, by one and the same deed; and that a mortgage could no more be irredeemable than a distress irrepleviable; that the law will control even an express agreement of the parties, and, by the same reason, equity will let a man loose from his agreement, and even against his agreement, admit him to redeem a mortgage (ƒ); and that whatever clause or covenant there may be in a conveyance, yet if upon the whole it appear to have been the intention of the parties that such conveyance shall only be a mortgage, or pass an estate redeemable, a Court of Equity will always construe it so (g).

Acting on these principles, they decided that no condition could be valid restricting the right of redemption within a given or limited time, as in Kelvington v. Gardiner (h), where the right of redemption was attempted to be confined to the lifetime of the mortgagor; and in Newcomb v. Bonham (i), where the like attempt was made. And although the decree for redemption made by Lord Chancellor Nottingham in the last-mentioned case was ultimately

(f) 1 Vern. 192, et vide East India Company v. Atkyns, Comyns, 349, where arguendo it is said, equity will relieve, even if the mortgagor take his oath not to redeem.

(g) 5 Bac. Ab, 5.

(h) Kelvington v. Gardiner, cited 1 Vern. 192, et vide Spurgeon v. Collier, 1 Eden's Rep. 55.

(i) Newcomb v. Bonham, 1 Vern. 7, et vide Jason v. Eyre, supra; Price v. Perrie, 2 Freem. 258.

reversed by Lord Keeper North, yet that was done on a principle which will be hereafter explained, and does not at all militate against the general principle above stated.

Nor did the attempt better succeed to confine the right of redemption to a particular line or class of heirs: for where a man having mortgaged his lands (k), amongst which were estates, which after marriage had been limited by way of additional jointure to his wife, and the proviso was, if the mortgagor, or the heirs male of his body, should pay, &c. then he or they might re-enter; and he covenanted that no one but himself, or the heirs male of his body, should be admitted to redeem; the jointress, after the death of her husband, without issue, filed her bill to redeem, and it was decreed, notwithstanding an attempt made by the mortgagee to support the agree ment, on the pretence that he had purchased the estate from the father of the mortgagor, who was tenant for life only, and had afterwards been evicted by the mortgagor as tenant in tail male, and that the intention was, if the mortgagor had no issue male, to make the mortgagee some compensation for his loss; but of which understanding between the parties no proof was adduced.

The report of the above case states, that the Lord Keeper in decreeing redemption, added, he did so the rather, because the defendant had a covenant for the repayment of his money, and therefore it was in

(k) Howard v. Harris, 2 Chan. Ca. 147.

the power of the mortgagee to have made it a mortgage at any time, which would bring it within another rule hereafter mentioned, viz. that a mortgage cannot be a mortgage on one side only, but must be mutual. It is however clear, that the omission either of a bond or covenant, which are collateral securities, creating a personal obligation on the mortgagor, will make no difference in the right to redeem, for (1) every loan implies a debt; and the right to redeem proceeds on the principle before stated, viz. that a creditor shall not obtain an advantage by his security, beyond his principal, interest, and costs. The bond or covenant may tend to explain a transaction, and show the intention of the parties in a doubtful case to create a mortgage; it may be good matter of evidence; but neither of them is a necessary ingredient in the creation of mortgage; for, to apply the remedy, equity only requires to be satisfied that the conveyance was originally intended as a security for the payment of a sum of money, whatever form the security may take.

Accordingly equity will admit even parol evidence to shew the conveyance was intended by way of security only. A case decided by Lord Chancellor Nottingham is one of frequent reference (m). A man agreed to lend money on mortgage, and it was proposed, as was formerly practised, that the mortgagor should execute an absolute conveyance, and that there should at the same time be a deed of de

() 1 Pr. Wms. 271; 2 Atk. 496.

(m) Sir G. Maxwell v. Lady Montacute, Pre. Cha. 526.