Hester v. Hester.

There can be no doubt of the general rule, in Lord Nottingham's expressive expressive phrase, "once a mortgage, always a mortgage for purposes of redemption: Newcomb v. Bonham, 1 Vern., 7; Cherry v. Bowen, 4 Sneed, 415. But the decision in the case in which this language was used was reversed, on bill of review, by the succeeding Lord Chancellor in 1 Vern., 232. The case was this, the grantor made an absolute conveyance of land to Bonham, but by another deed of the same date the land was made redeemable upon payment of £1,000, and interest, at any time during the life of the grantor; and in case the land should not be redeemed in his life time, then he covenanted that the same should never be redeemed. He died without redeeming, and the heir of the grantor exhibited his bill to have a redemption. It was in proof that the mortgagor had a kindness for the mortgagee, as being his near relation, and did intend him the land after his death. Lord Keeper North, upon the hearing of the bill of review, conceding the general rule, was of opinion that modus et conventio vineunt legem, and said: "That where there is a condition or covenant that is good and binding in law, equity will not take it away": 1 Vern., 215. held that there should be no redemption, "principally," he said, "because it was proved that the intent and design of the mortgagor was to make a settlement by the mortgage, and that he intended a kindness and benefit to the mortgagee in case he should not think fit to redeem the estate in his lifetime": 1 Vern., 232. In the leading case of Howard v. Harris, 1

He

Hester v. Hester.

Vern., 190, the mortgage contained a covenant that no one but the mortgagor or the heirs male of his body, should be admitted to redeem. The mortgagor died without redeeming and without heirs male of the body. Both Lord Nottingham and Lord Keeper North concurred in holding that the land might nevertheless be redeemed upon the general rule that an attempt to fetter the right of redemption would be unavailing.. But the latter said: "If the case had been that a man had borrowed money of his brother, and had agreed to make him a mortgage, and that, if he had no issue male, his brother should have the land, such an agreement made out by proof might well be decreed in equity." The English editors of the Leading Cases in Equity, in their notes on this case, say: "Another exception or qualification of the rule is to be found in that class of cases where the conveyance of an estate to a person by way of mortgage is intended to be in the nature of a family settlement; further it seems, if the right of redemption is confined to the life of the mortgagor, his heirs will not be allowed to redeem ": 2 Lead. Cas. Eq., 1051, citing Bonham against Newcomb, and other cases. also so stated in Jones on Mort., sec. 1041. State it has long been provided by statute that the equity of redemption may be waived by contract. Occupying the relation he did to the beneficiary in the trust deed, who had been raised by him, the intestate manifestly intended to make her a gift of the equity of redemption in the event of his death without redeeming, and we see no reason why he should

The law is

And in this

Knox v. McCain.

not be entitled to do so. It was his own voluntary act without any suggestion from the beneficiary.

The exceptions to the report of the Referees will be sustained, the decree of the chancellor reversed, and a decree rendered here in favor of the defendants, and the bill dismissed with costs.

J. J. KNOX, Com'r, v. R. H. McCAIN et al.

1. LIEN. Vendor. A payment by the maker of notes secured by an express vendor's lien, which notes a sub-vendee has agreed to pay in part consideration of his purchase, will not extinguish the lien.

2. MORTGAGE. Courts should enforce the contract. If a mortgage or trust deed made to secure a debt expressly stipulate for a sale of the property, in case of default in payment, free from the equity of redemption, it is the duty of the court, in the absence of some controlling equity, to enforce the contract.

FROM SHEBY.

Appeal from the Chancery Court at Memphis. W. W. MCDOWELL, Ch.

W. M. RANDOLPH for complainant.

T. F. CASSELS for defendants.

COOPER, J., delivered the opinion of the court.

Bill to sell land under a trust deed to secure the complainant's debt. The principal question raised by the

Knox v. McCain.

exceptions of the complainant to the report of the Referees is upon the prior right of the defendant, Minerva J. Owens, to be first paid out of the proceeds of sale. The debt of the complainant was against McCain, who had executed the deed of trust. But McCain held title under a deed from the defendant, Owens. This deed recited that the land was sold and conveyed by Owens to McCain in consideration of $303.41, cash paid, and for the further consideration of the assumption by McCain, and his agreement to pay the one-half of two notes described, being notes for unpaid purchase money due from Owens. to her vendor, and secured by a trust assignment of the land. The deed from Owens to McCain ex. pressly retained a lien upon the land to "secure the payment of one-half of the above described notes." The bill itself set out these facts, and made Owensa defendant in order that she might "be required to set up any claim she may have." She did set up her claim by her answer, stating and proving that McCain had paid no part of said notes, and that she had herself been compelled to, and had paid them. The chancellor was of opinion that the payment by Owens had extinguished the notes, and her lien was gone. The Referees reported that the decree upon this point should be reversed. We concur with the Referees. A vendor who sells land in consideration of the vendee's assuming and paying a prior lien debt the land becomes in equity the surety of the vendee, the latter, as between them, being the principal debtor, and may enforce rights accordingly

on

Knox v. McCain.

Snyder v. Summers, 1 Lea, 534. Being legally compellable to pay the debt, the vendor might pay it voluntarily without affecting the equitable right: McNeilly v. Cooksey, 2 Lea, 40.

The exception that the debt was barred by the statute of limitations is not well taken, for no such defense is made either by McCain, the debtor, or the complainant. And the possession of both being in subordination to the lien, the statute has never begun to run: Gudger v. Barnes, 4 Heisk., 570.

The third exception is, however, well taken. The trust deed of the complainant expressly provides that in case of default the land shall be sold for cash, free from the equity of redemption. The Referees direct the sale to be made on time, and there is a decision of this court sanctioning such a decree in a similar case: Frierson v. Blanton, 1 Baxt., 272. But this decision has been repeatedly overruled in unreported cases, upon the obvious ground that the contract is authorized by statute and that the obligation thereof cannot be interfered with in the absence of some controlling equity. The costs of this court were rightly adjudged, the defendant, Owens, having by her appeal reversed the chancellor's decree.

Exceptions disallowed and report confirmed, with the modification that the sale shall be for cash.