back into the joint custody of those who ought to take better care of it. And although a trustee (according to the rule laid down by Lord Eldon in Brice v. Stokes) may not be liable by joining in a receipt, yet, if (as in that case) the transaction is unnecessary, and he permits his co-trustee to keep and deal with the trust moneys contrary to the trust, he will be charged with any loss which may have occurred.2 When a number of trustees are appointed, they constitute (so to speak) but one trustee, and hence in any business of the trust they must all concur;3 but this rule does not apply to the case of public trusts in which the acts of a majority are binding.* 147. When a breach of trust has been committed, the remedy of the injured party is twofold, first, by holding the trustees or (in case of their death) their representatives responsible; and, secondly, by removal of the trustees. Trustees who have committed a breach of trust, or their representatives, cannot set up the statute of limitations; but the remedy of the cestuis qui trust may be barred by concurrence, acquiescence, or executing a release, providing they are not under any disability, such as infancy, coverture, or the like." Upon proper cause shown, a court of equity will remove a trustee.7 A trustee is entitled to come into equity for the purpose of obtaining the advice and assistance of the court in the execution of his trust.8 148. A trustee may have his accounts investigated by the court; and, on the other hand, he is bound to render proper accounts 11 Sug. V. and P. 93 (8th Am. ed.); Wayman v. Jones, 3 Maryl. Ch. 506. 2 Thompson v. Finch, 22 Beav. 316; 3 De G. M. & G. 560; Mendes v. Guedella, 2 J. & H. 259; Clark v. Clark, 8 Paige, 152; Wayman v. Jones, 4 Maryl. Ch. 500; Elmendorf v. Lansing, 4 Johns. Ch. 562; Ringgold v. Ringgold, 1 H. & Gill, 11; Jones's App., 8 Watts & Serg. 147; Edmunds v. Crenshaw, 14 Pet. 166. the cestui qui trust in asserting his rights. Bright v. Legerton, 2 De G. F. & J. 606. See, also, Hunter v. Hubbard, 26 Tex. 537; New Market v. Smart, 45 N. Hamp. 87; Smith v. Drake, 8 C. E. Green, 305. 62 Lead. Cas. Eq. (4th Eng. ed.) 916, 919. The disability of coverture does not protect the separate estate of a married woman; Clive v. Carew, 1 Johns. & H. 199. 7 Perry on Trusts; Hill on Trustees. 298 (4th Am. ed.). 8 Hill on Trustees, 543. when summoned to do so.1 And a trustee who has committed a breach of trust is liable to account to the cestui qui trust for the amount of the trust funds which have been misapplied, with interest; or for the profits which he has made. In other words, it is a cardinal principle in the management of a trust, that the trustee may lose, but cannot gain. CHAPTER VII. MORTGAGES. 149. The law of Mortgages no longer pe- | 155. Absolute deed may be shown to be a 150. Nature of a Mortgage; origin of 156. Foreclosure suits. 152. Nature of Mortgagor's title in Eng- 159. Mortgages to secure future advances. land; in the United States. 160. Merger sometimes prevented in Equity. 153. Once a mortgage, always a mortgage. 154. Distinction between mortgages and 161. Equitable mortgages to be considered conditional sales." under Liens. 149. THE title which the court of chancery called into being for the purpose of preserving the rights of a cestui qui trust as against a trustee has been considered, and its origin, its mode of creation, its incidents, and the duties to which it gives rise have been discussed. The next title originally recognized solely in courts of equity, which requires notice, is that which grows out of the relation of mortgagor and mortgagee, and it will be desirable to consider in this connection, not only the equitable title itself, but also a few of those rights and duties which are connected with this relation. This consideration, however, must necessarily be brief, for to enter at large into a discussion of all the points which arise out of the interesting subject of mortgages, would be to go somewhat outside of the present jurisdiction of courts of equity. 1 Pearse v. Green, 1 J. & W. 135; Freeman v. Fairlie, 3 Meriv. 24, 42. The subject of mortgages, indeed, is one which, in modern times, might justly fall within the scope of a treatise on common law, rather than of one which professes to deal with the extraordinary jurisdiction of the High Court of Chancery; because the rights of the mortgagor are now so thoroughly recognized in courts of law, that their former precarious condition has become a matter of history rather than one of practical importance. But this condition of things serves only to justify the remark made by Chancellor Kent, that "the case of mortgages is one of the most splendid instances in the history of our jurisprudence of the triumph of equitable principles over technical rules, and of the homage which these principles have received by their adoption in courts of law." Besides, while in many States of the Union the peculiarity of the relation of mortgagor and mortgagee has disappeared under the levelling influence of legislative enactments, in others it still remains, while in all of the United States, a knowledge of the history of mortgages is necessary to a philosophical understanding of the rules by which they are governed. 150. The jurisdiction of equity upon the subject of mortgages arose principally from two sources: First, the harshness with which the common law treated the mortgagor; and second, the inadequacy of relief which that system of jurisprudence afforded to the mortgagee. As is well known, a mortgage was a conveyance of land sometimes in fee, and sometimes for a less estate, with a stipulation called a clause of defeasance,2 by which it was provided that in case a certain sum of money were paid by the feoffor to the feoffee, on a day named, the conveyance should be void, and the estate should either, by virtue of the defeasance, revest in the feoffor, or he should be entitled to call upon the feoffee for a reconveyance of the same. The person who borrowed the money and conveyed the estate was called the mortgagor, and the other party to the contract and conveyance was the mortgagee. The term mortgage is derived from the mortuum vadium, or dead pledge of the civil law; because after the forfeiture was completed by the non-payment of the money, the estate was then 4 Kent's Com. 158. 2 The defeasance may be in a separate instrument, 4 Kent. Com. 41. dead to the mortgagor. Mortgages are classed by Littleton among estates upon condition. The fee vested in the mortgagee from the date of the conveyance, subject to the condition of being defeated by the performance of the stipulation on the part of the mortgagor. On the other hand, if the condition were broken, in other words, if the money was not paid, the estate in the mortgagee then became absolute, and the mortgagor lost his property altogether.1 As the estate conveyed was very frequently, if not always, greater in value than the debt which the conveyance was intended to secure, the strict common law construction of conditions broken, and the enforcement of forfeitures thereupon, necessarily occasioned much hardship. If the mortgagor was not prepared on the day to pay the amount due, the estate became absolute in the mortgagee, and no subsequent tender or payment could operate to revest the title in the mortgagor, or entitle him to any relief in a court of law. On one side of Westminster Hall he was entirely without remedy. On the other side, however, the court of chancery interfered for his relief. It was considered in equity that as the mortgage was, in point of fact, only a pledge for a debt, the payment of the debt, together with a penalty for the delay, in other words, interest, ought to entitle the debtor to have his property back again; that is to say, equity recognized the mortgagor's right to redeem. Hence arose that privilege on the part of the mortgagor, which has been so long inseparably connected with mortgages, and which is known as the equity of redemption. It was a right not recognized at common law, but only in chancery, and hence was called an "equity;" it was a right to buy back the land pledged, and hence was termed "redemption." This right of the mortgagor was recognized as early as the reign of Queen Elizabeth.2 151. In Roscarrick v. Barton3 it was said that the equity of redemption was a mere right, as distinguished from an estate; but in the leading case of Casborne v. Scarfe, Lord Hardwicke 1 Co. Litt. 332. 2 Langford v. Barnard, Tothill, 134. See, also, Emmanuel Col. v. Evans, 1 Ch. Rep. 18. 31 Ch. Cas. 217. 4 1 Atk. 603; 2 Lead. Cas. Eq. 1035 (4th Eng. ed.). decided that it was an estate, " for," said he," it may be devised, granted, or entailed with remainders, and such entail and remainders may be barred by fine and recovery, and therefore cannot be considered as a mere right only, but such an estate whereof there may be a seizin." This view of the equity of redemption has been particularly observed in the United States, where a mortgage is looked upon as a mere security for the debt, and the title is considered, for most purposes, as remaining in the mortgagor.1 This equity of redemption was, however, limited in point of time. It would have been obviously unjust to allow a mortgagor, or persons claiming under him, an unlimited option to redeem, no matter how many years might have elapsed since the date of forfeiture. The statute of limitations, as to real estate, furnished a convenient standard by which the duration of this right was to be measured; and it was held that after twenty years from the time of forfeiture, the mortgagee's right to redeem was forever gone.2 By analogy to the exceptions in the statute, ten years additional were allowed after the removal of the impediments of infancy, coverture, imprisonment, or absence beyond the seas.3 This equity of redemption existed not only in favor of the mortgagor, but also of other parties claiming under him. Thus the heir, the devisee, or the alienee (even though a volunteer), of the mortgagor, may redeem. So, also, may a subsequent mortgagee, a judgment creditor, or the crown, or lord of the fee, 1 4 Kent's Com. 160; 2 Wash. on Real given in writing, signed by the mortgagee Prop. 151. or the person claiming through him. 2 Anon., 3 Atk. 313; Phillips v. Sinclair, 20 Maine, 269; De Marest v. Wynkoop, 3 Johns. Ch. 129; Gates v. Jacob, 1 B. Mon. 308; 2 Sug. V. and P. 109 (8th Am. ed.). 3 1 Lead. Cas. Eq. 1065 (4th Eng. ed.). In England the limitation of the right of redemption is now fixed at twenty years by statute 3 and 4 Wil. IV., c. 27, 28; unless in the mean time an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been |