mortgage debt, ejectment would lie in his favor upon the refusal of the mortgagee to surrender the possession. But while no title in a strict sense vests in the mortgagee of land until foreclosure, yet his interest is in some cases treated and regarded as a title, for the purpose of protecting and enforcing the equities between parties. An instance of this is found in Mickles v. Townsend (18 N. Y. 575), where it was so held for the purpose of applying the doctrine of estoppel by deed against a person claiming as assignee of a mortgage, which existed at the time of his prior conveyance of the mortgaged premises with warranty but which was assigned to him afterward. And in Van Duyne v. Thayre (19 Wend. 162) the release of the equity of redemption by the mortgagor to the mortgagee was held to inure as an enlargement of the estate of the mortgagee so as to prevent the plaintiff's recovering dower at law, in disregard of the equity of the defendant to have the mortgage first satisfied out of the land. (Cowen, J., 21 Wend. 485.) It is easy to see that where the English doctrine prevails, that the mortgage conveys a legal title to the mortgaged premises, the right of the mortgagor to an account of the rents and profits of the land received by the mortgagee is purely and exclusively of equitable cognizance. At law, the mortgagee is the owner of the estate, and takes the rents and profits in that character. In equity, the mortgagor is regarded as the owner until foreclosure, and his right to an account is incident to his right of redemption. (2 Wash. on Real Property, 161, 205; Seaver v. Durant, 39 Vt. 103; Parson v. Welles, 17 Mass. 419.) But the necessity to resort to an accounting in equity, in order to have the rents and profits applied to the satisfaction of the mortgage, is not obviated by the fact that here the mortgagor retains the legal title. The mortgagee in possession takes the rents and profits in the quasi character of trustee or bailiff of the mortgagor. (2 Pow. on Mort. 946, a; 2 Wash. 205.) They are applied in equity as an equitable set-off to the amount due on the mortgage debt. (Ruckman v. Astor, 9 Paige 517.) The law does not apply them as received to the payment of the mortgage. It depends upon the result of an accounting upon equitable principles, whether any part of the rents and profits received shall be so applied. The mortgagee is entitled to have them applied, in the first instance, to reimburse him for taxes and necessary repairs made upon the premises; for sums paid by him upon prior incumbrances upon the estate, in order to protect the title, and for costs in defending it; and if he has made permanent improvements upon the land, in the belief that he was the absolute owner, the increased value by reason thereof may be allowed him. So he may be charged with rents and profits he might have reIceived, if his failure to recover them is attributable to his fraud or willful default. (2 Powell on Mort. 957, note; 4 Kent 185, 2 Wash. 218; Cameron v. Irwin, 5 Hill 272; Mickles v. Dillaye, 17 N. Y. 80.) In many cases complicated equities must be determined and adjusted before it can be ascertained what part, if any, of the rents and profits received is to be applied upon the mortgage debt. In the absence of an agreement between the parties there is no legal satisfaction of the mortgage by the receipt of rents and profits by a mortgagee in possession to an amount sufficient to satisfy it, and his character as mortgagee in possession is not divested until they are applied by the judgment of the court in satisfaction of the mortgage. These considerations lead to an affirmance of the judgment without considering the question of the validity of the statute foreclosure. The plaintiff's claim to recover upon the allegation of a right to the possession of the premises when the action was commenced. The defendants were in possession, claiming under the mortgagee, whose mortgage was outstanding and unsatisfied. The action is not for a redemption or for an accounting, and the plaintiffs are not in the attitude of resisting an attempt by the mortgagee to enforce the mortgage. The judgment should be affirmed, with costs. Judgment affirmed. CHAPTER II. ESSENTIAL ELEMENTS OF THE MORTGAGE. SECTION 1.-THE FORM. (a) LEGAL MORTGAGES. JONES, MORTGAGES, § 60. The term "mortgage" has a technical signification at law, and is descriptive of an instrument having all the requisites necessary to establish it in a court of law, as distinguished from that which may be so regarded in a court of equity. A mortgage which only a court of equity will recognize is properly designated an "equitable mortgage."1 TIFFANY, REAL PROPERTY, § 510. A mortgage, being a conveyance of, or a contract concerning, an interest in land, must, under the Statute of Frauds, be in writing.2 Though, as before shown, the view that a mortgage is a lien merely has for most purposes displaced the view that it is an estate on condition, the old form of conveyance on condition is usually retained. In states where 1 While it is certain that there are some requisites of form for a legal mortgage, it is very difficult to say just what they are. There have not been many cases testing this question, a circumstance which may be explained by the following considerations (1) in the vast majority of cases, mortgages are drawn by lawyers upon carefully perpared legal blanks and a superabundance of form is used; (2) in the small number of cases in which the standard forms are departed from, litigation arising thereon is, in the vast majority of cases, by equitable suit, in which the distinction between legal and equitable mortgages is usually immaterial. Of course the same considerations which make authorities on this question scarce, make the question relatively unimportant. 2 Difficult questions under the Statute of Frauds arise in cases where parties have attempted by parol to revive a mortgage which has been paid (see Jones, §§ 362, 943-948), or to extend the security of a mortgage to a debt other than that described in the mortgage (see Jones, §§ 357, 947). See also, application of the Statute to informal equitable mortgages, post. 3 The following typical form is taken from Jones, Legal Forms, 503, where it is presented as a standard form in Colorado, a lien state. "This indenture, made this--- 19_, between_. ------day of____. - of the first part, and of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of the legal theory still obtains, conformity with the essentials of a conveyance is essential in order that the instrument may be sufficient to vest the legal title in the mortgagee, and the omission of the words of inheritance necessary in a conveyance in fee simple will have the effect of reducing the estate of the mortgagee to one for life only. In states where the equitable theory of a mortgage prevails, there is no necessity that the instrument have the essentials of a conveyance, it being sufficient that the instrument show an intention to mortgage, and that it be executed as required by the statute. The statute quite frequently authorizes a simple and concise form, stating the bare essentials of a mortgage, and it is, of course, sufficient if this be followed. The mortgaged land must always be described in the mortgage __dollars to---- ...in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, hath granted, bargained, sold and conveyed, and by these presents doth grant, bargain, sell, convey and confirm, unto the said party of the second part, his heirs and assigns, forever, all the right, title, interest, claim and demand which the said party of the first part has in and to the following described lot or parcel of land, namely: "To have and to hold the same, together with all and singular the appurtenances and privileges thereunto belonging or in anywise thereunto appertaining; and all the estate, right, title, interest, and claim whatsoever, of the said party of the first part, either in law or equity, to the proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever. And the said party of the first part, the aforesaid tract or parcel of land and premises unto the said party of the second part, his heirs and assigns, against the claim or claims of all and every person whomsoever, does and will warrant and forever defend by these presents. "Provided always, that these presents are upon this express condition, that if the said party of the first part, his heirs, executors or administrators, shall well and truly pay, or cause to be paid, to the said party of the second part, his heirs, executors, administrators, or assigns, the sum of dollars in manner particularly specified in a certain promissory note bearing even date herewith, executed by the said party of the first part to the said party of the second part, then and thenceforth these presents, and everything herein contained, shall cease and be void, everything herein contained to the contrary notwithstanding. "In witness," etc. There is, of course, much variation upon the basic theme of conveyance and condition, which, apart from the matter of mere style, consists in the addition of clauses and stipulations which do not change the fundamental nature of the mortgage but merely superadd special conditions or covenants. Some of the more usual stipulations of this sort will be noted hereinafter. In England, perhaps the commonest form of mortgage is the mortgage for years, which differs from our typical mortgage, in the substitution, for the grant in fee, of a lease for years, usually a very long term. The condition is the same as in a mortgage in fee. This form of mortgage, while not unknown with us (e. g. Nugent v. Riley, 1 Metc. (Mass.) 117), is exceedingly rare. with sufficient particularity to enable it to be identified, as in the case of any other conveyance, but a reference to another instrument, in which the property is described, is sufficient for this purpose. The requisites as to execution are ordinarily expressly named in the statute. An acknowledgment is usually requisite, as in the case of absolute transfers of land, only as a preliminary to the record of the conveyance.* A mortgage must be delivered as if an absolute conveyance, and there are a number of decisions to the effect that the mortgage must be accepted by the mortgagee, and that, until such acceptance, other persons may acquire rights in the premises, as by judgment or attachment liens, which will take precedence of the unaccepted mortgage. § 511. Though the condition or proviso that the conveyance shall be void in case of compliance by the mortgagor with his contract, termed the "defeasance," is usually inserted in the conveyance to the mortgagee, this is not, in most jurisdictions, necessary, and it may be contained in a separate instrument. This practice has, however, been criticised, as liable to be productive of injury to the mortgagor. In order that a mortgage with a separate defeasance be effective as such at law, it is necessary that the two instruments be delivered at approximately the same time, or at least that they be parts of the same transaction. Likewise, in order to create a mortgage valid at law as well as in equity, the defeasance must be of as high a nature as the conveyance itself, that is, if the latter is under seal, the defeasance must likewise be under seal, so that it may be regarded as a part of the same instrument, and it must be executed. with the other formalities required in the case of a conveyance of land.5 4 The same thing is true of attestation by witnesses. Mortgages are subject to the same requirements as deeds as to execution by a wife to relinquish dower or homestead. 5 The doctrine stated in the text represents one extreme, the other being that a deed absolute which is shown by parol evidence to have been intended as a security is a legal mortgage, and therefore does not pass the title but merely creates a lien. Taylor v. McLain, 64 Cal. 514 (overruling Hughes v. Davis, 40 Cal. 117, which had overruled Jackson v. Lodge, 36 Cal. 28-there are over a dozen decisions from the Supreme Court of California dealing with this question); Odell v. Montross, 68 N. Y. 499; Adair v. Adair, 22 Ore. 115; Howe v. Carpenter, 49 Wis. 697; (semble). This sort of transaction has almost universally been accepted without question as falling short of the requirements for legal mortgages and, |