assigned to her all his right and claim to this six hundred and
forty-four dollars and seventeen cents; and four days afterwards,
on the twenty-eighth of the same month, by his deed of indenture
acknowledged in due form, and recorded on the same day, in
consideration of one hundred dollars therein mentioned, and ac-
knowledged to have been received by him of William Powell,
for whose use this action was brought, granted, bargained, and
sold, to the said William Powell, his heirs and assigns, all his
right, title, interest, claim, and demand, of, and in that certain
messuage and tract of land, with the appurtenances, situate, &c.,
containing twenty-nine acres, be the same more or less, which he
might have after the death of Alice Craft, his mother, (meaning
the same land conveyed as above mentioned to the defendant,)
to have and to hold the said messuage and tract of land, with the
appurtenances, unto the said William Powell, his heirs and as-
signs forever; to which there is added a covenant of general
warranty on the part of John Craft, the grantor, for the title to
the said messuage and tract of land, with the appurtenances.

Alico Craft, upon whose death the six hundred and forty-four
dollars and seventeen cents were to be paid by the defendant,
died before the commencement of this action.

The instrument or deed by which John Craft assigned hia
right in the six hundred and forty-four dollars and seventeen
cents to Mary Johnson, was never recorded, but notice was given
of the assignment *of it immediately to the defendant, r*9 jon
who had notice likewise given him of the deed from L
Craft to Powell.

Upon this state of facts appearing on the trial, the de-

277



249 SUPREME COUET [Philadelplmt,

[Craft for the use of Powell v. Webster.]

fendant alleged that he was bound to pay the money demanded
to Mary Johnson, and that William Powell, the real plaintiff in
this action, had no right to demand, receive, or prosecute this
suit for it. The plaintiff however contended, that as Mary
Johnson had never put her assignment upon record, and that
he, William Powell, being an innocent and bona fide purchaser
of the claim without notice of the assignment to Mary Johnson,
it, as against him, was therefore void, and he entitled to receive
the money ; and prayed the court to direct the jury accordingly ;
but the court told the jury, that it was not necessary that Mary
Johnson's assignment should have been recorded in order to make
it good against the plaintiff William Powell's claim, and the jury
found a verdict in favour of the defendant. It is the charge of
the court below in this particular that is complained of, and has
been assigned for error.

It is argued by the counsel for the plaintiff in error, that the
assignment of the claim in dispute by John Craft to Mary
Johnson, is embraced within the terms of the act of the 18th
of March, 1775, entitled, "A supplement to the act, entitled,
'An act for acknowledging and recording of deeds,'" the first
section of which declares, that " all deeds and conveyances which
from and after the publication hereof, shall be made and executed
within this province, of or concerning any lands, tenements, or
hereditaments in this province, or whereby the same may be in
any way affected in law or equity, shall be acknowledged, &c.,
and shall be recorded in the office for recording of deeds, in the
county where such lands or hereditaments are lying and being,
within six months after the execution of such deeds and convey-
ances ; and every such deed and conveyance that shall at any time
after the publication hereof be made and executed, and which
shall not be proved and recorded as aforesaid, shall be adjudged
fraudulent and void against any subsequent purchaser or mort-
gagee for valuable consideration," &c. The counsel for the
plaintiff contends, that this assignment is "of or concerning
lands," and that land is "affected" by it, and that it therefore
comes expressly w r ithin the provisions of the act; that the claim
itself is in every respect like a mortgage, and ought to be con-
sidered as if it were such ; and that the assignments of mortgages
upon lands lying within this state, have ever been thought to
fail within the provisions of the recording act, and have been in
the city and county of Philadelphia almost universally recorded
under it.

The practice may be as stated, and I do not feel inclined to

condemn it, but still I cannot give my assent to the proposition

that the assignment of a mortgage is embraced within the terms

of the recording act, or that it is necessary under that act to have

278



March 29, 1833.] OF PENNSYLVANIA. 249

[Craft for the use of Powell v. Webster.]

it proved and recorded, in order to preserve its validity against
a subsequent assignment without notice, for a valuable consid-
eration.

*A mortgage in England is only a personal contract,
and the mortgagee has no interest beyond his money.
Pre. in Ch. 99 ; Wilmot on Mort. 4. The mortgagor has the
actual estate in equity, which may be devised, granted, and en-
tailed ; the entails may be barred by fine and common recovery.
Co. Lit. 205, u. 1 ; Moss v. Gallimore, Douglass, 279. The
land is held as a pledge or security for the payment of the
money, and the mortgage though in fee (the legal estate in
which it descends to the heir at law of the mortgagee) is con-
sidered as personal estate in equity. Ib. The mortgagor
while in possession is deemed the owner of the estate. He
gains a settlement by forty days' residence on it, because the
mortgagee, notwithstanding the form, has but a chattel, the
mortgage being only a pledge for the payment of his money.
The legal title is in the mortgagee merely for a special purpose,
and no further than to make it answer the end of a security
for his money. King v. St. Michaels, Doug. 632 ; Wilmot on
Mort. 17.

Upon the same principle, of the mortgagor being considered
the owner of the estate, it has been held, that if he devise it and
afterwards pay off the mortgage-money, and the mortgagee con-
vey the estate to a trustee in trust for the mortgagor, it does not
amount to a revocation of the will. Doe v. Pott et aL, Doug.
710. And even after the mortgagee has taken possession of
the land without a foreclosure, he is still deemed in equity as
having but a chattel, and the mortgage only a security. He
can exercise no act of ownership over the property, which may
incumber the mortgagor, such as making a lease of it for years
to an under tenant. Hungerford v. Clay, 9 Mod. 1 ; 2 Equi.
Ca. Abr. 610. And in equity he will be restrained from com-
mitting waste, although a mortgagee in fee. Hanson y. Derby,
2 Vern. 392 ; Withrington v. Banks et a/., Ca. Ch. 30. If the
mortgage be of a leasehold estate, and the mortgagee procure a
grant of a new term, after the old had expired, this will be a
trust for the mortgagor. Lee v. Lord Yernon, 7 Pro. P. Ca.
432.

It is true, that if the mortgage-money be not paid at the day
appointed for that purpose, the estate granted by the terms of
the mortgage, is said in law to become absolutely vested in the
mortgagee, and if it be for a term of years, upon his death
would vest in hi? executors or go to his administrators, and if a
fee, would descend to his heirs at law: That the payment of the
mortgage-money or tender of it afterwards with interest, would

279



250 SUPEEME COUET [Philadelphia,

[Craft for the use of Powell v. Webster.]

not be sufficient to reinvest the mortgagor, wit li the legal title
to the mortgaged premises ; but that a re-conveyance from the
mortgagee, his executors or administrators, if the estate be for
a term of years, or his heir at law, if a fee, is indispensably
necessary to effect this : That formerly this reinvestiture of
title, could only be compelled by application to a court of
equity, but now the courts of common law by the stat. of 7 Geo.
2, c. 20; in cases of suits brought on mortgage bonds, or for the
recovery of the possession of mortgaged lands, are authorized to
i-*oci-i constrain the mortgagees *to accept the principal and
J interest due on the bond on mortgage with costs, to
stay them from proceeding to judgment therein, and to compel
them to reconvey the mortgaged lands. It would also seem to
be, that if a mortgage in fee has become forfeited, and the
mortgagee has taken possession of the land, he may dispose of
it by will as real estate. Noy v. Mordaunt, 2 Vern. 581 ; s. C.
Pre. Ch. 265. But unless it should clearly appear to have been
his intention to dispose of it as real estate, it will be considered
personal. Or if he sell the land as a fee simple estate abso-
lutely, and the vendee die, it, as between the executor and heir
of the vendee, shall go to the heir. Colt v. lies, 1 Vern. 271.
But in all cases where the mortgagee in fee is not in possession,
and the equity of redemption not foreclosed or released, his
estate is considered personal. Fisk v. Fisk, Pre. Ch. 11 ; s. c.
2 Eq. Ca. Abr. 429, pi. 4; Audly v. Audly, 2 Vern. 192;
Howel v. Price, 1 P. Wms. 291; Attorney-General v. Vigor, 8
Ves. 256. A devise " of all my lands " will not pass the in-
terest of the mortgagee in fee, in the land so mortgaged to him.
"Winn v. Littleton, 1 Vern. 3. Nor will a devise " of all my
lands, tenements and hereditaments," be sufficient, where the
mortgage was forfeited at the time of making the will, and the
equity of redemption foreclosed or released afterwards. Strode
v. Russell, 2 Vern. 621.

I may observe here, that although a mortgagee in fee, may
by his will dispose of his interest in the mortgaged lands as
real estate, yet that does not prove its character to be real estate,
nor that it is not purely personal, because a testator may direct
his executors to invest money due to him upon bond or other-
wise, in the purchase of land, to be conveyed to A. B. in fee,
and if after the death of the testator, and before the purchase
is made by the executors, A. B. dies also, the money so directed
to be laid out for the use of A. B. cannot be claimed by his
executors or administrators, but will belong to his heirs at law,
the same as if it were real estate. Edwards v. Warwick, 2 P.
Wms. 171 ; Beauclerk v. Mead, 2 Atk. 170. So the testator may
impress the character of personalty upon his real estate by his
280



OF PENNSYLVANIA. 251

[Craft for the use of Powell v. Webster.]

will, as if he devises it to his executors, to be sold by them, and
directs the money arising from the sale thereof to be distributed
among several persons, naming them, or to be added to his per-
sonal estate, and considered as part of it. Lord Bristol v.
Hungerford, Pre. Oh. 81 ; Craig v. Leslie, 3 Wheat. 563. In
all cases, however, where the mortgagee in fee dies without
making any disposition of the mortgage by will or otherwise, if
the mortgagor wi.sh to redeem, he must pay the mortgage-money
and interest to the personal representatives of the mortgagee,
and not to his heir at law, although he may be in actual posses-
sion of the land. 1 Equi. Ca. Abr. 326-7, pi. 2, 3, 4, 5.

Although upon the mortgagee in fee's dying in the actual pos-
session of the mortgaged premises, his heir at law, in England,
will succeed to the possession of them; or in case of the mort-
gagor's being in the possession, the heir of the mortgagee, if the
mortgage be forfeited, may recover the possession from the mort-
gagor by ejectment unless *he will pay the mortgage- r^n-n-i
money, yet the land in his hands is but a pledge which
he holds in trust for the executors, until the money shall be
paid, when he is bound to reconvey it to the mortgagor. 1 Eq.
Ca. Abr. 326-7, pi. In Martin v. Mowlin, 2 Burr. 978-9,
Lord Mansfield, in speaking of a mortgage, which was the sub-
ject under consideration in that case, gives a summary of the
law as it was then understood in England in regard to a mort-
gage, where he says, it " is a charge upon the land ; and what-
ever would give the money, will carry the estate in the land
along with it, to every purpose. The estate in the laud is the
same thing as the money due upon it. It will be liable to debts ;
it will go to executors; it will pass by a will not made and ex-
ecuted with the solemnities required by the statute of frauds.
The assignment of the debt, or forgiving it, will draw the land
after it as a consequence; nay, it would do it. though the debt
were forgiven only by parol, for the right to the land would fol-
low, notwithstanding the statute of frauds." Mr. Judge Throw-
bridge has, iu his reading on the law of mortgage, taken excep-
tion to some of Lord Mansfield's positions, laid down in this
passage just quoted. See 8 Mass. Rep. 553, Appendix. But
it may be observed, that the doctrines of Littleton and Coke on
the subject of mortgages, ought not to be adopted as the test by
which the improvements of Lord Mansfield's day in the law on
that branch of it, are to be either approved or condemned. 4
Kent's Comm. 187-8.

Judging of the nature, character, and effect of a mortgage
from the authorities referred to, and supposing it to be in all
respects the same in this state that it is in England, it appears

281



252 SUPREME COURT ' 'Philadelphia,

[Craft for .the use of Powell v. Webster .]

to me that the assignment of it would not come within that part
of the recording act which has been recited.

But if there remained a doubt on this point, a due considera-
tion of our acts of assembly in respect to mortgages, will be
sufficient, I think, to remove it. The provisions which have
been thereby made for taking mortgaged lands in execution, and
selling them by the sheriff or coroner, for such estates as are
mentioned in the mortgages respectively, where default has
been made in paying the debts intended to be secured by
them, and again for having satisfaction entered upon the mar-
gin of their records where they have been paid, prove to my
mind, that a mortgage is not to be considered as conveying any
estate or interest whatever in the land from the mortgagor to the
mortgagee ; and that the owner of land in fee who has mort-
gaged it, whether for a term of years, or in fee, is still, notwith-
standing, the legal owner of it, and must be so considered, until
he shall have disposed of it, or it shall be taken in execution,
and sold from him. The mortgage is merely a lien upon his
land, as a security for the payment of the money or fulfilment
of some engagement therein mentioned. The mortgagee has
no subsisting interest in the land, which he can convey either
absolutely, conditionally, or qualifiedly ; or even mortgage to a
third person. The mortgage is purely an incident to the debt,
as completely so, as the bond is to the debt that it has been
r*9^~\ *gi ven to secure the payment of, and its existence can-
-" not possibly be imagined without the debt. If the de'bt
be paid at any time, either before, at, or after the day assigned
for that purpose, or be released or extinguished, the mortgage
thereoy oecomes a perfect nullity, the land discharged of the
incumbrance ; the mortgagor is as much the legal owner of it,
as if the mortgage had never been made. A reconveyance from
the mortgagee to the mortgagor in order to perfect his invest-
ment of title to the land, is not deemed requisite, because the
mortgagee is not considered as ever having had any actual
right to the land to make a reconveyance necessary. Such, I
think, was the understanding of the legislature in 1715, when
they passed the act for acknowledging and recording of deeds ;
and again, in 1823, when they passed an act relative to mort-
gages. By the 9th section of the first act, and the first and
second sections of the latter, mortgagees are required upon
being paid the amount of the mortgage-money, whenever that
may be, to enter satisfaction upon the margins of the records
of their respective mortgages; and in case of neglect or unwill-
ingness to do so, a mode is provided for enforcing it. But a
deed of reconveyance from the mortgagee to the mortgagor,
such as is deemed requisite in England, to reinvest the mort-
282



March 29, 1833.] OF PENNSYLVANIA. 253

[Craft for the use of Powell v. Webster.]

gagor with his title to the land, is not mentioned in these acts ;
had it, however, been considered in the slightest degree neces-
sary, we must suppose that it would have been noticed and
provided for by the legislature when they were engaged in
legislating specially for the security of a mortgagor, against a
satisfied mortgage. They no doubt thought, and very correctly
too, that the act of 1705, which I shall notice presently, had
prescribed and limited the eifect of mortgages in such a way
as to make a provision for a reconveyance nugatory, as nothing
was ever vested in the mortgagee by virtue of the mortgage
for it to operate on. The only thing which might seem to con-
tradict the idea that no interest in the land passes from the
mortgagor to the mortgagee, by the execution of the mortgage,
is contained in the eighth section of the act of 1715, which
declares, that " no deed or mortgage, or defeasible deed in the
nature of mortgages, hereafter to be made, shall' be good or
sufficient to convey or pass any freehold or inheritance, or to
grant any estate therein for life or years, unless such deed be
acknowledged or proved, and recorded," &c. I however, do not
think that this section of that act is to be understood as neces-
sarily implying that every valid mortgage must pass or convey
in the laud the estate therein expressed from the mortgagor to
the mortgagee. It may be construed as declaring, that unless
the mortgage be proved, acknowledged, and recorded, &c., it
shall not be sufficient under the provisions of the act of 1705,
which prescribes a judicial course of proceeding, whereby the
land mortgaged, when default has been made by the mort-
gagor, in paying the money for the space of twelve months after
it has become payable, may be taken in execution and sold ;
and by the sixth section of this act, it is enacted, that " when
the said lands and hereditaments shall be so sold or delivered
as *aforesaid, the person or persons to whom they shall r*o-_n
be so sold or delivered, shall and may hold and enjoy ^
the same, with their appurtenances, for such estate or estates
as there were sold and delivered, clearly discharged, 1 ' &c., and
by the eighth section, " that no sale or delivery which shall be
made by virtue of this act, shall be extended to create any further
term or estate to the vendees or mortgagees or creditors, than the
lands or hereditaments so sold or delivered, shall appear to be
mortgaged for, by the said respective mortgagees and defeasible
deeds." The course of proceeding authorized by this act, is
the only one by which the mortgagor can be divested of his
right and title to the land mortgaged. It is the sale under it
which creates the estate and passes it to the vendee; or the de-
livery of the land under it to the mortgagee or creditor, which
creates and passes the estate to him, and the mortgage limits

283



254 SUPEEME COUET [Philadelphia,

[Craft for the use of Powell v. Webster.]

merely the extent of the estate that is so passed or transferred
in either case. This construction seems to me to comport best
with the nature and effect of the proceeding that is directed by
this act, as also with the whole spirit of the act itself.

The writ which the mortgagee, in case of a default on the
part of the mortgagor to pay the money, is thereby authorized
to sue out, is a scire facias, requiring the officer to whom it shall
be directed, " to make known to the mortgagor, his heirs, ex-
ecutors, or administrators, that he or they be and appear before,
&c., to show cause, if anything he or they have to say, where-
fore the said mortgaged premises ought not to be seized and
taken in execution for payment of the said mortgage-money,
with interest," &c., and in case no sufficient cause be shown,
judgment is directed to be rendered by the court, " that the
plaintiff in the scire facias shall have execution by levari fa-
cias to the proper officer, by virtue whereof the said mortgaged
premises shall be taken in execution, and exposed to sale in
manner aforesaid, and upon sale conveyed (by the officer making
the sale) to the buyer or buyers thereof, &c., but for want of
buyers, to be delivered to the mortgagee or creditor, in manner
and form, as herein above directed, concerning other lands and
hereditaments to be sold, or delivered upon executions for other
debts or damages." By the proceedings under this act, the
mortgaged premises are to be sold surely not as the property
of the mortgagee, because nothing could be more incongruous
than for a creditor to cause his own property to be sold, per-
haps sacrificed, to pay the debt of his debtor ; it must then be,
as the property of the mortgagor who is the debtor, that they
are to be sold. It is not the equity or right of redemption
either, that is to be sold, but such estate as is described in the
mortgage. If, however, a sale cannot be effected for want of
buyers^ then the mortgagee or creditor, may have so much of
the mortgaged premises, as will be equal in value to the amount
of his debt delivered to him, to hold for such estate as is de-
scribed in the mortgage. By this operation, the estate is trans-
r*oKK-i ferred to him, which militates against the idea of his
I *having been invested with the estate described in the
mortgage by the execution of it.

The heir of the mortgagee in this state, has nothing to do with
the mortgage, or the land upon which it was given ; and whether
it be in fee, or for a term of years, the claim under it is purely
personal, and belongs to the executors or administrators, as part
of the personal estate of the testator or intestate, to be admin-
istered and accounted for by them as legal assets. They alone
have authority to demand and receive the money due upon the
mortgage. They may release, or assign it, although it be in feo j
284



March 29,1833.] OF PENNSYLVANIA. 255

[Craft for the use of Powell v. Webster.]

and their assignee may maintain an action of ejectment in his
own name to recover the possession of the land, as was decided
by this court in Simpson v. Amrnous, 1 Binu. 175.

A mortgage, in Pennsylvania, is literally and legally now
understood to be but a bare security for the payment of the
money, or performance of other acts therein mentioned ; and at
most only a chose in action ; although assignable, I admit, so
as to enable the assignee of it, to maintain and prosecute in his
own name a writ of scire facias upon it, under the provisions
of the act of assembly of 1795, already noticed, authorizing the
mortgaged premises to be taken in execution, and sold for the
purpose of making payment of the debt. For its being barely a
security, I refer to the cases of the Schuylkill Co. v. Thoburn,
7 Serg. & Rawle, 419; Simpson v. Ammons, 1 Binn. 175;
"Wentz v. Dehaven, 1 Serg. & Rawle, 317 ; M'Call v. Lenox, 9
Serg. & Rawle, 304; 4 Kent's Com. 153-4. If the mortgagee
held a real interest under the mortgage in the land, either of an
equitable or legal character, it would be the subject of execution
.according to the cases of Humphreys v. Humphreys, 1 Yeates,
427, and Hurst v. Lithgrow, 2 Yeates, 24, where it is laid down,
that all possible titles, contingent or otherwise, in lands where
there is a real interest, may be taken in execution. But it Avas
ruled by this court in Rickert v. Madeira, 1 Rawle, 325, that
the interest of the mortgagee, whether the mortgage was legal or
equitable, could not be taken in execution. Mr. Justice Rogers,
in delivering the opinion of the court in that case, says, "a mort-
gage must be considered either as a chose in action, or giving
title to the land and vesting a real interest in the mortgagee. In
the latter case it would be liable to execution ; in the former, it
would not, as it falls within the same reason as a judgment,
bond, or simple contract." And then he proceeds to show, as
well by reason as authority, that it is merely a chose in action
and therefore not liable to be taken in execution.

This being the character of a mortgage in Pennsylvania, it is
not necessary that the assignment of it should be in writing, to
satisfy either the requirements of the statute against fraud and
perjuries, Richards v. Syms, 3 Eq. Ca. Abr, 617, pi. 2, or those
of the common law. Debts or ehoses in action may be assigned
for a valuable consideration bv parol. Fash on r. Atwood, 2
Ch. Ca. 372 ; Com. Dig. tit. Chan. 2 H. page 370, (Rose's Ed. ;)