Page:United States Reports, Volume 1.djvu/154

Rh 1785. to be as ſtated by the oppoſite counſel, yet, he contended, that it is very different in Pennʃylvania. Our act of Aſſembly (Prov. Laws 51.) puts mortgages on quite another footing:—For, 1ſt. Mortgagee cannot proceed on the mortgage until one year expires after day of payment elapſed. 2d. Even then a proceſs is directed by the act, altogether different from that which is practiſed in England, and which does not go to veſt the legal eſtate in the mortgagee. 3d. In fact, the mortgagee cannot by any default of the mortgagor, however long, or reiterated, acquire a right to more than principal, intereſt and coſts, for the amount of which he has an abſolute and ſpecific lein on the mortgaged land, and for the payment of which, the ſaid lands are to be ſold on execution (after judgment on the Scire Facias) in the uſual way. And the act for acknowledging and recording of deeds §. 9, 10 (Prov. Laws. 79) directs under a heavy penalty, that upon payment made as aƒoreʃaid, the mortgagee at the requeſt of the mortgagor, ſhall acknowledge ſatisfaction on the margin of the record of the mortgage, which acknowledgement ſhall be a bar to all actions brought or to be brought on the mortgage, and ſhall forever diſcharge, defeat, and releaſe the ſame. He then read the law of mortgages in England from 2 Black Comm. 157. and contraſted it with our act of Aſſembly. In England, after day of payment paſt and forecloſure, the land is abſolutely in mortgagee without any poſſibility of recall; it ceaſes to be a pledge, and becomes to all intents and purpoſes the abſolute property of the mortgagee. In Pennʃylvania, there is no ſuch thing as foreclosure, the land mortgaged never ceaſes to be a pledge; a legal eſtate never veſts in the mortgagee, nor can he by any poſſibility become owner of the land, unleſs he purchaſes under the execution. Hence, it muſt appear, that the reaſon of the Engliʃh cafes cannot apply in Pennʃylvania. Relief is given to the mortgagor in Chancery, expreſsly becauſe he is remedileſs at law; and, therefore, they will grant the equity upon what terms they pleaſe. In Pennʃylvania, the act of Aſſembly precludes all neceſſity for ſuch an interference. The privilege of redemption after the day of payment paſt is not properly ſpeaking an equity, and therefore the principle of the chancery cafes cannot exiſt. Another reaſon why the Engliʃh caſes do not apply is, that, in England, real eſtate is not anſwerable for ſimple contract debts; and, therefore, Chancery, in favour of ſuch creditors, will cover them where they have it in their power; but here the ſimple contract creditor can come on the land even in the hands of the heir. If the rule ſhould be extended to Pennʃylvania, the moſt miſchievous conſequences would enſue to purchaſers. It would be in vain for them to ſearch the offices to ſee to what amount a tract of land may be incumbered by mortgages; becauſe, however accurate he may be in his calculation and compariſon of the value of the land with the amount of the mortgage debts, an infinity of intermediate ſimple contract debts may ſwallow up the whole difference.

Lewis obſerved, in reply, that the miſchief ſuggeſted by his opponent need not be apprehended, becauſe all the caſes agree, that  the