Bergen v. Bennett , 1 Cai. Cas. 1 ( 1804 )

Per curiam delivered by Kent, J.

This case comes before - the court on an appeal from a decree of the court of chancery, that the respondent be permitted to redeem. The reason assigned for the decree was, that the power to sell expired with the life of the mortgagor. This doctrine, if sound, renders it unnecessary to discuss any of the other points. If the power was extinct, the sale was null, and the right of the respondent to redeem exists in full force. It is proper therefore to turn our first attention to this point; and, although my examination of it has led me to a different conclusion^ I have made it with the deference and respect due to the court which pronounced the decree. It is admitted that a naked authority expires with the life of the person who gave it; but a power coupled with an interest is not l'evoked by the death of the grantor. In my opinion the power contained in the mortgage is of the latter description. A power simply collateral and without interest, or a naked power, is, when, to a mere stranger, authority is given of disposing of an interest, in which he had not before, nor hath, by the instrument creating the power, any estate whatsoever. But when power is given to a person who derives, under the instrument creating the power, or otherwise a present or future interest in the land, it is then a power relating to the land. These last powers are subdivided into powers annexed to the estate, and powers in gross. Both are considered as powers with an interest, because the trustee of the power has an interest in the estate, as well as in the exercise of the power. If, as one of the old cases expresses it, the person clothed with the power hath at the same time an estate in the land, the power is not collateral, because it savours of the land. The power now in question answers exactly to this definition of a power with an interest, because the mortgagee has at the same time a vested estate in the land, and it does not answer at all to the definition of a power simply collateral; for that is but a bare authority to a stranger, who has not, nor ever had any estate whatsoever. I might, perhaps, rest satisfied with giving this description of the two powers, drawn from approved authority; but I think the point is susceptible of more precise and definite illustration. If a man, by his will, directs his executors to sell his land, this is but a bare authority without interest; for the land, in the mean time, descends to the heir at law, who, until the sale, would at common law be entitled to the profits, and, being but a naked authority, if one executor dies, the power at common law would not survive ^*. But if a man devises his land to his executors, to be sold, then there is a power coupled with an interest; for the executors, in the mean time, take possession of the land and of the profits. In this case, as the estate, so also the trust, would survive to the surviving executor. There is a very striking analogy between this case, of a devise of land to executors to be sold, and a mortgage of lands with a power to sell. In both cases, the estate passes to the person clothed with the power, and in both cases the power is given in trust, to answer a specific purpose. I cannot discern any distinction between the cases, sufficient to render the power in the one instance naked, and in the other coupled with an interest. It is not a power with interest in the executors, because they may derive a personal benefit from the devise; for a trust will survive, though no ways beneficial to the trustee. It is the possession of the legal estate, or a right in the subject, over which the power is to be exercised, that makes the interest in question; and where an executor, guardian, or other trustee, is invested with the rents and profits of land for the sale or use of another, it is still an authority coupled with an interest, and survives. It has been thus frequently adjudged. This case also is still more analogous to the one of a conveyance of property by way of pledge, or in trust, with an agreement for the mortgagee to sell in case of default. This is a practice known in the English law, and it was taken for granted by the lord chancellor, in the case of Tucker, administrator, vs. Wilson, that where there existed such an agreement, the mortgagee might sell after the death of the mortgagor. It seems to have been admitted, not to have been competent for the mortgagor to revoke this authority to sell, because it was granted for the benefit of the mortgagee. He might perhaps embarrass the execution of the power, by a subsequent mortgage or judgment, but the power would still remain in full force, although the land, in the hands of the purchaser under the power, might become subject to such subsequent lien. In short, this power is altogether different from that of a mere naked authority: the latter is no better than a letter of attorney given to a stranger to the estate, as in the instance given by Coke, of a letter of attorney to make livery of seisin. This is revocable by the grantor at his pleasure in his life time, and is absolutely revoked by his death. The grantee of such a naked power, having no interest connected with the power, has, of course, no interest affected by the revocation. The present power is in every view distinct from the other. I conclude, therefore, that the power to sell was not revoked by the death of the mortgagor, and that the decree cannot be supported on the ground that was taken in the court below. I have bestowed some pains upon, this question, because I am of opinion that the grounds of a definitive decree in chancery, resting upon what is assumed to be a principle of law, ought not to be questioned and overturned without much care and consideration. It remains to see whether any of the other points, that were raised by the counsel upon the argument, will bear out the decree. It is contended, that the power was not" recorded according to law. The act directs, that all powers to mortgagees, for making sales in fee, shall be acknowledged, proved, and recorded as other deeds usually are, before the conveyances for the sale be executed. I incline to think the act was complied with. The power was registered in the book of mortgages. The subject matter of the whole act is mortgages; and, in the preceding part of it, it speaks of deeds with a defeasance in a separate writing, and of conditional deeds, and declares them to be the same as mortgages. It is no violent construction, therefore, to consider the words, recorded as deeds usually are, to refer to mortgage deeds, they being the only deeds within the purview and other provisions of the act. These powers also are usually contained in the same deed with the mortgage, and to register the mortgage part of the deed in one book, and the power part in another book, would be inconvenient and idle. Admitting the proper book to have been selected, the power was well recorded ; for it was recorded at length, as far as the mere power in question went, and nothing was omitted but the covenant at the foot of it, declaring the sale to be a perpetual bar. But if this be not the true construction of the act, I am satisfied that even the omission to record the power will not affect the sale. The only use in recording it, is for the benefit of the purchaser, and it ¿loes- not lie with the mortgagor to object to the validity of the sale by reason of that omission. He can have no concern or interest to be affected, whether it be recorded or not. -The next objection is, that the notice of the sale was not according to the directions of the act. It is. alleged, that the proof of the six months’ notice in the news-paper, and-on the court-house door, is not as it ought to- be, full and perfect ;• and some nice criticisms have been made upon its deficiency. I shall forbear entering into this examination. Considering the lapse of time since the publication was made, the proof of the notice is pretty well made out, and every defqct may well be supplied by a reasonable presumption. I have, however,, a short decisive answer to the whole objection; and that is, that after a mortgagor or his heir has lain, by for 16 years, he shall not then be permitted to come in and question the regularity of the notice.Public convenience essentially requires that we should establish this principle. It would be too rigid and severe to exact all these minutias of proofs, after such a length of time. It was-next urged, that the exceptions made and published in- the conditions of sale, rendered the same void. The exceptions which have been deemed as of serious moment, (for I pass by the exception of the com on the ground, and the 100- rails, as not requiring an answer) are, a drain for the collect of 10' feet wide, and certain terms imposed on the purchaser, who could not give sufficient security. I am not inclined7 to- question the doctrine, that a mortgagee is bound to pursue his power strictly, and that, although he may. sell part of the land at one time, and part at another, yet that he cannot clog and incumber the part that he sells, but must sell simply and unconditionally the whole interest, as the same was conveyed by the mortgagor. I cannot however intend, that this principle was violated in the present case. The exception of the lO feet may, or may not, have been an incumbrance to the premises. It could not have been, made, or intended as a benefit to the mortgagee, who became the purchaser; for the premises, it appears, were not bounded upon him. He could have had no motive. For the drain being excepted from the sale, would, if created then for the first time, have remained in the heir of the mortgagor, and it must, still remain his property. I think, however, we ought to intend, after this distance of time at least, that this drain had antecedently existed, and was founded on usage, or was an exception in the previous deeds of the land. It is more probable then, that exception was put in for greater caution, and that the mortgagee himself had taken the premises subject to that exception. It would be unreasonable and impolitic, in my opinion, to disturb that sale at this day, by reason of a circumstance of such small moment, as a matter of fact, in which no fraud or gain can be imputed to the one party, -or real injury to the other; and when, by fair intendment, the whole can be so easily reconciled with strict principle on the subject. The other objection is, that, by the conditions of sale, unreasonable terms were imposed on the purchasers, who could not give sufficient security. These sales at auction may be insisted on to be cash sales. The mortgagee may have his conveyance ready to execute, and may exact the money as soon as the land is struck off. If he is willing, however, to allow a credit to the purchaser, and if he be entitled to allow it, he may then, no doubt, dictate the terms and extent of the security, so as the same be not unreasonable. If the purchaser is not satisfied with these terms, he has only to advance the money which the mortgagee is entitled to demand, and if offered, bound to receive. But whether the mortgagee be entitled to sell upon credit and security, or is in all cases bound to exact the money immediately, it is unnecessary to decide ; because the sale in question was not a sale upon credit, but a sale equivalent to a cash sale, since it was in reality a sale to the mortgagee himself. If he could not have sold upon security, but for cash only, these terms that were given out were null and void, and could have had no effect upon the sale, or upon the purchasers ; and if lie ivas entitled to sell on credit and security, I should not consider the terms imposed to have been so unreasonable, as that the sale ought now to be set aside, from that circumstance alone. I do not, therefore, consider these conditions of sale as forming any solid ground for the present bill, to set aside the sale and redeem. Another objection to the sale is, that the mortgagee was himself the purchaser; and it is a sound and established rule of equitable policy, that a trustee cannot himself be a purchaser of the trust estate, without leave from chancery; and the reason of the rule is, to bar the more effectually every avenue to fraud. This rule was recognized by this court in the cause of Munroe and others, vs. Allaire ; but a distinction was there taken between the case of a suit against a trustee, to set aside a purchase, he having procured the formal legal title, as in the present case, and where a suit was by him commenced to complete his purchase, as in the case cited; and it was observed, that in the former case, and the observation is consequently applicable to the present case, that equity would not interfere as of course, to set aside the purchase; for although equity will not aid, it is not bound in every case to disturb such a purchaser. It has also been made a question, whether the rule would apply to the case of a trustee, who was himself a cestui que trust, and was obliged to purchase, in order to avoid a loss to himself by a sale at a less price. But I shall forbear for the present from giving any opinion, whether these distinctions are well taken or not, because the rule being admitted to be absolute and universal, it is still agreed, that the cestui que trust must come m a reasonable time to set aside the sale, or he will not be heard. What shall be termed a reasonable time, is not susceptible of a definite rule, but must, in a degree, depend upon the circumstances of the particular case, and be guided by sound discretion in the court. In this case, the cestui que trust comes after 16 years, finding it a gaining bargain, and being, all that time, under no legal disability. Is this coming within reasonable time, to set aside a sale on the ground of this technical rule of equity ? Suppose the mortgagee, instead of selling the lands, had entered into possession of them, under the mortgage, and enjoyed them as his own: 20 years possession in such a case would have been a bar to a bill to redeem. This is a settled rule in chancery. And ought not 15 years possession, after a sale according to the directions of a statute, and which is a species of foreclosure by law, to be esteemed equal to 20 years possession, commencing without such solemnity ? In the case of Wichalse, executor, vs. Short, the party came jnto chancery to redeem 11 years after a foreclosure, and that too on the ground of a parol declaration of the mortgagee, that he was willing to receive back his money; but the court of chancery held, (and the decree was affirmed in the house of lords) that the mortgagor came too late after a lapse of 11 years, and that it would be a bad precedent to open the foreclosure, as it would render the property, acquired under such circumstances, extremely precarious, and would be attended with mischievous consequences to the mortgagee, who, in the mean time relying on his title, had improved the estate, and kept no account of the rents and profits. Such, a practice would shake an abundance of titles. In the case, likewise, of Lants v. A. and W. Crispe, a rule to redeem was refused, after the mortgagor’s acquiescence for six years, under a foreclosure by his own consent. These cases are certainly stronger than the present, and I think the acquiescence of the cestui que trust in the purchase by the mortgagee, and which is necessarily presumed from his delay, ought now to conclude • him. The allowing him to redeem, would establish a precedent much more impolitic, and inconvenient in its consequences, than the violation, in this case, of the rule, that a mortgagee shall not purchase, I conclude, therefore, under the circumstances of this case, none of the objections raised are sufficient to justify the setting aside the sale of 1784, and consequently that the decree of the court of chancery ought to be reversed, and that the bill below to redeem, be dismissed with costs.

* See the note (0) of Mr. Hargrave on this point, in Co. Litt. 113. a.