[BOOK II. PART 11. MORTGAGE. money was originally advanced to another person, and not to the covenantor; for the court will always take into consideration whose debt it is, and make the personal estate benefited by the loan, liable in the first instance, and not the security; for the covenant is only as an additional security, for the satisfaction of the lender, and not intended to alter the nature of the debtj. And the law will be the same, if money be borrowed on mortgage by virtue of a power to charge an estate; for in such case the heir takes the land cum onere, and the personal estate shall not be applied to discharge it; and although, on the transfer of such mortgage, the assignee covenant to pay it off; yet, since the land was the original debtor, this covenant will be considered only as a security for the land. The ground of which determinations is, that, in such cases, the covenant is considered in equity as a mere collateral security, not to be resorted to, unless the principal security, which is the land, fails. For the landholder, in truth, enters into such covenant, relying upon the lands enabling him to discharge it; and the money raised does not increase his personal estaté, but is to exonerate the rest of the real estate'. VI. OF FORECLOSURE IN DEFAULT OF REDEMPTION. THE same principle of substantial justice, which induced courts of equity to interfere on behalf of a mortgagor who had forfeited his estate by not performing the condition annexed to the conveyance, and to relieve him from the legal consequences incident to such neglect, rendered it proper that means should be established by which the mortgagor might be compelled to perform the contract on j Bagot v. Oughton, 1 P. Wms. 347. k Evelyn v. Evelyn, 2 P. Wms. 591; S. C. Fitzgib. 131; Sel. Ca. Ch. 80. 1 See Pow. Mort. 419; and see Earl v. Countess of Coventry, 2 P. Wms. 222; S. C. Strange, 596. his part; namely, the re-payment of the money borrowed, MORTGAGE, with interest. The mode adopted for this purpose, is an application to a court of equity, either to procure a decree for sale of the estate, if reversionary, or, if in possession, to oblige the mortgagor to redeem his estate presently, or, in default of so redeeming, to be for ever foreclosed, that is, barred and utterly excluded from his equity of redemption for ever' (1). But courts of equity will never decree a foreclosure, until the period limited for payment of the money be passed, and the estate, in consequence, forfeited to the mortgagee; for it cannot shorten the time given by express covenant and agreement between the parties, as that would be to alter the nature of the contract, to the injury of the party affected by it". But although a mortgagee be, of right, entitled to a decree for foreclosure, after the estate becomes forfeited, if he act fairly, yet, if there be any injustice in the case, the court will refuse such decree. As, where a mortgagee, having notice of a voluntary settlement, procured the trustees of the estate to convey to him to protect his incumbrance; the court, on a bill filed by him to foreclose the children claiming under the settlement, refused, saying, that if he might be suffered to protect himself by getting in the legal estate, they would not carry it on by a decree in equity to foreclose". And it is to be observed, that in Welch mortgages, where, by special agreement, profits are to be set against interest, there can be no foreclosure; but on tendering principal and interest, the mortgagor may come into Chancery for a redemption at any time. The reason is, See Pow. Mortg. 284, and 2 Inst.,198. m Bonham v. Newcomb, 2 Vent. 365; 1 Vern. 232. Vern. 271. (1) As to who should be parties to a bill of foreclosure, see Pow. Mortg. 1042, 4th edit. MORTGAGE. because in such cases, there is nothing for the rule laid down by the court, in analogy to the statute of limitations, to operate upon, for there is no forfeiture, and it is on forfeiture that the rule begins to attach. And though, in such case, the mortgagee becomes in the nature of perpetual bailiff to the mortgagor, which is an additional objection to opening long accounts, yet that does not hold, where the mortgagee voluntarily takes the estate subject to a perpetual account, because he ought not to be relieved from his own contract and agreement°. And a decree to foreclose tenant in tail of an equity of redemption, will bind his issue, and also those in remainder, who are no parties to the mortgage; because the equity of redemption is a right set up only in a court of equity, and may be there extinguished P. And it has been determined, that a release of the equity of redemption by tenant in tail, after a decree for an account and foreclosure, is tantamount to an absolute foreclosure by order ; for he sustains the interest of every body, and those in remainder were considered as cyphers. And it would be very inconvenient if the remainder-men were necessarily to be parties. As there might then never be an absolute foreclosure, the account would be endless, and the foreclosure be open to every contingent remainder, man. Infants may be foreclosed, as well as adults. But the interest of infants is so far regarded and taken care of, in the Court of Chancery, that no decree to foreclose can be made against them, without giving them a day to show cause against it when they come of age'. If they show no cause, the decree is made absolute upon them; but when • Howel v. Price, 1 Ves. P Chamond Roscorrick v. Booth v. Rich, 1 Vern. 295; Gundry v. Baynard, 2 Ib. 479; Taylor v. Philips, 2 Ves. 23. they come of age, and show cause within the six months, MORTGAGE. they may, upon motion, put in a new answer, and make a new defence: for it would be to no purpose to give them a day to show cause, if the infants, notwithstanding, were concluded by what their guardians had done, who may have made an improper defence, or may have mistaken the nature of the case (1). If a woman, before her marriage, or the ancestors of a woman, mortgage lands, and the equity of redemption vests in her, being a feme covert; upon a bill brought by a mortgagee to foreclose, she is liable, it seems, to be absolutely foreclosed, though the procedure be during the coverture; and it is certain, that she shall have no day given to her, or her heirs, to redeem after the coverture shall be determined". This distinction between the case of a feme covert and of an infant, as to a day to show cause, results, I apprehend, from the different causes which give rise to their respective disabilities, and from the duration of those disabilities. Mallock v. Galton, 3 P. Wms. 352. (1) It is said, the proper way, in case of an infant, is to apply for a decree, that the lands may be sold to pay the debts, and that will bind him; for, in that case, no forfeiture will incur to him, as the surplus will be his, after the debts paid. But even then, if he be decreed to join in the conveyance, he must have a day after he comes of age; for there is no other way than this, for the infant to set forth his title, which he ought to have an opportunity of doing. Booth v. Rich, 1 Vern. 295; Cook v. Parsons, 2 Vern/429; Prec. Ch. 184; Fountain v. Caine, 3 P. Wms. 504. But, if the mortgagee or his alienee be satisfied, and does not require that the infant should be a party to the sale; in such case, the legal title being in the mortgagee, and the infant having a mere equity, the decree for sale, the infant being no party, may be made without a day to show cause, but then the case will be open to investigation when the infant attains his age. Cook v. Parsons, 2 Vern. 429; and see 9 Mod. 128. VOL. III. D D ! MORTGAGE. The disability of infants is the consequence of a privilege given them by law, for their protection, founded on the natural inability which is presumed to attend persons of tender years, to act for themselves, and which determines with their minority. That of femes covert is an absolute incapacity, arising from their having lost, by coverture, all powers of acting for themselves; the law considering them as having voluntarily delegated their rights to their husbands, or rather, that their rights are merged in those of their husbands. The law, therefore, considers an infant as capable of doing no binding act during a certain definite period, unless it be evidently for his own good; but from a feme covert, the law takes the right of acting respecting her civil concerns; and having invested the husband with the right of acting for her, leaves her liable to the consequences of his neglect, if there be no fraud. The right, therefore, to show cause against a decree of foreclosure, made during infancy, after the infant attains his full age, is, in equity, analogous to the privilege he hath at common law, on an action brought in relation to his inheritance, the decision upon which would be a perpetual bar to him, to pray the parol to demur; for as, in such case, at law, he was not permitted to go on, but for the tenderness of his years (in respect whereof the law inferred want of understanding in him) and for his benefit, that he might not be prejudiced in his estate, the court gave an interlocutory judgment, that the suit should remain over, until he attained his full age; so, in equity, though in respect of the original contract, and the right of the mortgagee to his money, and to enable him to procure it, a decree to foreclose is not stayed, yet the rights of the parties remain just as they were, until he attains his age; when, if any reason existed at the time of foreclosure, which, if urged to the court, would have been a ground for refusing it, he may take advantage of that, and have it opened; but the parol never demurred on account of coverture, for there was no |