Page:Federal Reporter, 1st Series, Volume 1.djvu/778

 770 FEDERAL REFOBTEB. �Caldwbll, J. The first question to be detennined is the character of this instrument. �The interpleader maintains that it is a mortgage, or deed of trust in the nature of a mortgage, and the attaching cred- iter insista that it is an assigiunent for the benefit of creditors, and that, as such, its validity must be tested by the provis- ions of the statute of this state relating to such instruments. �A brief consideration of the purposes and legal effect of the several instruments mentioned will disclose to which class this instrument belongs. A mortgage does not invest the mortgagee with an absolute and indefeasible title; the equitable title, called the equity of redemption, remains in the mortgagor. The mortgage is a security for the debt, and cre- ates a lien upon the property in favor of the crediter. There is no difference in legal effect between a mortgage with a power of sale and a deed of trust, executed to secure a debt, ■where the power of sale is placed in a third person. Both are securities for a debt ; both create specifie liens on the prop- erty ; and in both the equitable title or right of redemption remains in the debtor, and is an estate or interest in the property that the debtor may sell, or that may be seized and Bold under judicial process by his other creditors, subject to the lien created by the mortgage or deed of trust. Burrill on Assignments, § 6; Turner v. Watkins, 31 Ark. 429, 437; Dil- lon's Monograph on Deeds of Trust, 11 Am. Law Eegister, (N. S. 1863,) 648. �An assignment for the benefit of creditors is well defined to be "a transfer by a debtor of some or ail of his property to an assignee iu trust, to apply the same, or the proceeds thereof, to the payment of some or ail of his debts, and to return the surplus, if any, to the debtor." Burrill on Assignment, § 2. The terms of the instrument in this case bring it exaotly within this definition, and stamp it as an assignment for the benefit of creditors and not a mortgage, or deed of trust in the nature of a mortgage. Unlike a mortgage or deed of trust, it was not given by way of security. There is no defeasance clause giving the grantor the right of redemp- tion ; it does not create a lien on the property, but conveys it ��� �