Page:Federal Reporter, 1st Series, Volume 9.djvu/766

 DEMOND f. CBABT. 751 �160-'—which declares that no mortgage shall be construed as implying a covenant for the payaient of the money; and that if there be no express covenant for such payment in the mortgage, and no bond or other separato instrument to secure payment, the remedy of the mort- gagee shall be conaned to the land. The evidence was equivocal as to whether the plaintiff paid the judgment compulsorily, in discharge of his own obligation, and took the security afterwards, or furnished it by way of a voluntary loan to the defendant, made upon that se- curity; and the court submitted that question to the jury, with direc- tions to return a verdict for the plaintiff if they found the former, and for the defendant if they found the latter, to be the case. The decis- ion of the motion depends upon the correctness of this instruction. The diligence of counsel has broughtto notice but veryfew cases bear- ing upon the construction of this statute. The statute appears to have been designed to remove doubts of construction, and to declare the law, rather than to restrict rights ; and this seems to be the view taken of it by Chaneellor Kent. There had been cases in which it had been held that the condition in a mortgage, if the mortgagor shall pay, etc., implied a covenant that the debt existed, and that the mort- gagor would pay, making the mortgage deed not only proof of the mortgage but proof of the debt also, although it contained no express promise or covenant to pay the debt. King v. King, 3 P. Wms. 358. And in Ancaster v. Mayer, 1 Bro. Ch. Cas. 454, at 464, Lord Chan- celier Thurlow had said : �"A man mortgages his estate without covenant, yet because the money was borrowed. the mortgagee becomes a simple contraet crediter, and in that case the mortgage is a collateral security, aad if there is a bond or a covenant, then there is a collateral security o£ a higher species, but no higher by means of the mortgage merely." �In the text of Kent's Commentaries it was laid down that — �" The covenant must be an express one, for no action of covenant will lie on the proviso or condition in the mortgage; and the remedy of the mortgagee, for non-payment of the money according to the proviso, would seem to be con- flned to the land, where the mortgage is without any express covenant or sep- arate instrument." �In a note to the third edition, referring to this statement, he said : "This doctrine has been made a statute provision in the New York Revised Sta tutes," and referred to this statute. Then he referred to the intimation of Lord Thurlow, and added: "But the statute of New York has disregarded the suggestion . " ��� �