John Lansing, junior appellant, against Peter Goelet, respondent

John Lansing, junior appellant, against Peter Goelet, respondent ALBANY, Dec. 1827. A decree of foreclosure and saje of premises mortgaged in fee, is a completa bar of the equity of redemption, though the mortgagee become purchaser. So is a decree of sale without any express decree of foreclosure. Where the premises, on sale, bring only a part of the mortgage debt, the mortgagw. may collect the deficiency by judgment and, execution on the collateral bond; and this silall not open the foreclosure, or restore the equity of redemption. The principle and history of the practice, in this state, of selling mortgaged premises, instead of strict foreclosure; and a view of the English and * American authorities on that practice, with the statues of Hew York relating to the same practice. Per Jones, Chancellor, arguendo, to the court of errors, :in support of his decree in chancery. On appeal from the.court of chancery. "The appellant filed his bill in the court below, stating that he had, on the 6th of September, 1810, mortgaged certain real estate in Albany to the respondent, in fee, to secure the payment .of $10,000, with a bond as collateral security. That ithe respondent filed-his bill in chancery, praying a sale of the mortgaged premises, and payment of the mortgage debt by the avails. That on the 28th of October, 1820, an order of reference to a master was ,made -to compute and report the amount of the mortgage debt, which he reported at $11,581 09. That the report was confirmed; and on the 1st .of November, 1820, the court of chancery decreed a sale ; but made no decree-of foreclosure against the appellant, which left the equity of redemption open to him. That in pursuance, of the decree, a master sold the mortgaged premises at public auction, which were purchased partly;by the respondent, and partly by others, at about 86,450. That the respondent had judgment against the appellant on his bond.; and after the sale of the mortgaged premises, proceeded by.afi.fa. upon the judgment, to levy on other real estate of the appellant, to satisfy the deficiency. The bill of the appellant charged that even if the. chancery decree of sale had been valid, it would be opened by the proceeding upon-the judgment and. execution. The bill of the appellant then prayed liberty to redeem the mortgaged premises on paying the mortgage debt, .interest and costs. The respondent demurred to the whole bill, and in August, 1826, the court of chancery dismissed the bill, with costs; and on the 28th of May, 1827, the decree of dismis sion was affirmed on a rehearing. From this decree of dismission, the present appeal was brought. * Jones, Chancellor, in the court below, assigned the reason for the decree, and the reasoning below was now rendered to this court, as the ground of the decree, by Jones, Chancellor. This is a bill to redeem a mortgage, The case is in substance this : That the complainant executed to the defendant a bond, conditioned for the payment of $10,000 with interest, and a mortgage in fee, upon real estate in the city of Albany, to secure the payment of the debt: that default was made by the mortgagor in the payment of the money according to the condition of the bond, whereby the estate of the mortgagee in the mortgaged premises became absolute at law; and that a bill was filed in this court by the mortgagee, upon the securities against the mortgagor and against certain judgment creditors who had obtained judgments against him, praying that the mortgaged premises might be sold by the order and decree of the court: that the bill was taken pro confesso, against all the parties defendants thereto : and that a decretal order was thereupon made, referring it to a master to compute the sum due upon the bond and mortgage; and that upon the coming in of the report of the master, and the confirmation thereof, an order was made for the sale of the mortgaged premises; but that there was no formal decree of foreclosure in the cause: that the premises were sold under the decree, and that the defendant became the purchaser of a large part thereof, and the remainder was sold to others, the whole producing about $6,400, leaving a deficiency of upwards of $6000. The complainant, pending the suit on the mortgage, and before the order was made for the sale of the mortgaged premises, confessed a judgment to the defendant, in the supreme court of judicature of this s ate, on the bond accompanying the mortgage; and the defendant, after the sale of the premises under the decretal order, caused a testatum fieri facias to be issued on the judgment, to the sheriff of the county of Schoharie; and a levy was made by virtue thereof, upon certain lands and real estate of the complainant in that county to satisfy the deficiency. The complainant insists, that the sale of the mortgaged premises under the decretal *order of this court, was no bar to the equity of redemption; and prays to be permitted to redeem the mortgaged premises, and for general relief. To this bill the defendant has put in a general demurrer. Upon these pleadings, the complainant contends, that a sale of mortgaged premises under a decree of sale, without a formal decree of foreclosure preceding it, does not bar the right to redeem ; or if the sale under the decree is tantamount to a foreclosure, then the debt is extinguished by the sale. The defendant insists, that when a sale is decreed, a decree of foreclosure is not necessary; and that the omission of a decree of express foreclosure, where a sale is decreed, does not leave the equity of redemption open; and that the pursuit of ulterior satisfaction by judgment on the bond accompanyingthe mortgage, and execution upon the judgment, did not open the decree, or let in the mortgagor to the redemption of the mortgaged premises. The first question then is, whether the sale under the decretal order of this court, is a bar to the claim of a right to redemption? And this question involves the inquiry, whether, by the terms of the contract, and the established principles of law, the mortgagee is obliged to extinguish the equity of redemption by foreclosure, and to take the estate in payment of the debt; or is entitled to a decree of the sale of the mortgaged premises, for the satisfaction of his demand? A mortgage, in its origin, was in reality what it still, by the terms of it, purports to be—an absolute sale of the estate by the mortgagor to the mortgagee,.subject to be determined by the payment of a given sum of money, or the performance of some other condition, within a given period of time ; as by the terms of the contract, if the money was not paid, or the condition performed, by the day limited for payment or performance, the estate became absolute in the grantee. But the original character of the mortgage has undergone a change: it retains the form of a conditional sale, but has long been in substance a mere security for debt; and it must be admitted, at this day, to be intended by the parties, and treated *by courts of equity, as a .security for the payment of a loan or debt, and not as a .contract of purchase and sale. The mortgagor pledges his estate, with the intent, and in the confident expectation of redeeming it by the payment of the debt; ’and the mortgagee takes the pledge as a security for his money, and in the expectation of being redeem ed. His object is to be secure in the re-payment of the loan he makes, or the ultimate payment of the debt he forbears; and he looks principally to the sufficiency of the security, which he will of course require to be ample. The mortgagor, knowing his intention, and confiding in his ability to pay the debt, readily agrees fully to secure it. Hence it generally happens that the value of the estate is much greater, and often more than double the amount of the money secured by the mortgage; and as a failure of the payment of .the debt by the day limited by the condition of the mortgage works a forfeiture of the estate, the mortgagee, if allowed to hold his legal advantage, would thus acquire the premises for a greatly inadequate consideration. But it would be against conscience, to allow the mortgagee to prevail against the equitable right of the original owner to redeem, when the intention of both the parties was the hypothecation, and not the absolute sale of the estate ; and when the loan or debt for which it was pledged, was wholly inadequate as a consideration of the purchase of the absolute interest of the mortgagor. Still, the courts of law can give no relief against .the terms of the contract and the legal title vested in the mortgagee: [2] .but equity, looking through the form of the contract, to its substance, and viewing the mortgage as a mere security for the debt, relieves the debt- or against the forfeiture ; and treating him as the equitable owner of the estate subject to the debt, allows him the right to redeem it, after it has become absolute -at law in the mortgagee, upon full payment of the principle money for which it Was pledged, with lawful interest as a compensation for the delay.. This equitable right to redeem, though it may not be coeval with'the contract of mortgage, was engrafted upon it so early, that it has long been adjudged to form one of its properties, and to be inseparable from it. It now forms an *essential ingredient of the contract, and gives to it its chief value, as a convenient, safe, and suitable security for the contracting parties. The mortgage is, in its legalform and effect, a most rigorous security; and if its legal severity was not relaxed by this equitable right, it could not he tolerated, in the present state of -society in this country, as a security for debt. The courts of equity, therefore, are tenacious of this equitable title of the mortgagor to his estate, and are careful to preserve it to -him, and to give him the full benefit of it for his protection. Tut while equity is thus watchful of the rights of the mortgagor, it forgets not the interest of the mortgagee-: it gives him the full benefit of his mortgage, as a security for the faithful performance of the obligations of the mortgagor, and for enforcing the full payment of the debt, whenever ‘he is entitled to demand it, and chooses to exert his power. Thus, the rights and obligations of the parties to the contract are respected -by this court, and their equitable remedies are mutual. The mortgagor may redeem his estate whenever he -pleases, by the full payment of the principal and interest of the debt, without any impediment from the legal forfeiture by-nonpayment at a day limited by the condition, unless he is precluded by the decree of the court, or suffers the lapse of time to raise a presumption to bar his right, and the mortgagee, on his part, may, at any time after the debt be comes due, and a default is made in the payment of it, according to the terms of the contract, exhibit his bill in this court against the mortgagor, and compel him to redeem by the payment of the debt, or to submit to a foreclosure or sale of the mortgaged premises for the satisfaction of it. These principles are not seriously controverted by either of the parties; but the point at which they divide in opinion, is the right of the mortgagee to a decree upon his securities, for the sale of the estate for the satisfaction of the debt; the complainant insisting that the remedy of the mortgagee is confined to a strict foreclosure ; and the defendant contending that he has his election of the remedy by foreclosure, or by a decree for the sale of the premises. And if the settled rules of law do not restrict him to the remedy by foreclosure, *it is certainly most consonant with the nature of the contract as a security for the debt, and with reason and policy, to allow him'the election of a sale; and the sounder principle would seem to be, to encourage sales in preference to strict foreclosures. It is the settled principle of equity as applicable to mortgages, that the debt is the principle object of the contract, and the mortgaged premises a collateral security merely for the payment of it. The contract, therefore, and the remedies for enforcing it, are more properly governed by the principles that apply to the relation of debtor and creditor, than the rules that regulate legal titles and estates. In early times, when the mortgage was still regarded as a conditional sale of the land, rather than as a mere security for the payment of a debt, and adherence to the form of the condition in the application of the remedy of the mortgagee, was natural; and it would necessarily lead to the decree of strict foreclosure, requiring the mortgagor to perform the condition, by paying the debt within a given time, to be limited by the court; or to be for ever barred and foreclosed of his right to redeem. The effect of such a decree, it will be seen, would be, tha< -he mortgagee would take the land for the debt; and in a ' country where the laws do not permit the sale of real estate by execution at law, for the satisfaction of debts, there might be some apology for preferring the foreclosure to the sale. But in modern times, when the more liberal principle has gained tbe ascendancy, which deals with the mortgage as being, in its substance and legal effect, a mere security for the payment of the debt; and in this state, where the lands of the debtor are subject to sale for the satisfaction of his debts, it would be strange indeed that a court of equity should be without the power to decree a sale of the mortgaged premises for the satisfaction of the debt, and the mortgagee confined to a decree for a strict foreclosure. When the mortgage is the only security for the debt, and the mortgagor is not personally bound for the payment of it as sometimes is the case, the only remedy of the mortgagee for the recovery of his demand, would be to take the estate for the debt, in case the mortgagor on being called upon in ^equity, failed to redeem it. But when the mortgagee takes the personal bond of the mortgagor for the debt, and a mortgage of real or personal estate as collateral security, which is usually the case, he is entitled to the full benefit of both securities; and if he is compelled to come into this court to obtain the benefit of his mortgage, his appropriate remedy would seem to be, a decree for the sale of the mortgage^ premises for the satisfaction of the demand; for the mortgagee, in such cases, if that remedy is not open to him, cannot have the full effect of his securities. He holds the personal bond of his debtor for the debt, and the mortgage as collateral, security for the payment of it. Suppose the mortgaged premises to depreciate in value, or by some casualty to sustain’ damage,, so as n'ot to be Worth the amount of the debt, must the’ mortgagee he compelled to take the estate, thus reduced in value, in satisfaction of his demand ? If he is confined to a strict- foreclosure, and the’ legal operation of such a decr'ee is to- discharge the mortgagor from-the debt, he cannot enforce his mortgage without losing the- benefit of the security Afforded by the per- " sonal- bond of the debtor.- But if he is entitled to a decree of sale,, all Ms- securities will be available to him; fot if the proceeds of the sale of the mortgaged premises prove to be insufficient to satisfy the debt, recourse may be had to the bond- of the debtor for satisfaction. It" was admitted that the defendant might have brought a suit at law upon the bond, and have pursued that action to judgment and execution, and- after exhausting that remedy by a levy and sale of such other property of the mortgagor as could he found, might in -case of a deficiency in means to fully satisfy the debt, have had recourse to the mortgaged premises- for the residue; and if he had the right first to proceed on the bond, against the mortgagor personally, and his general property, and afterwards to resort to the mortgaged premises for satisfaction, why is it that he might not elect first to exhaust the mortgaged premises before he had recourse to the other property of the debtor ? If it would be proper to require that either security should he' first- exhausted, *it would seem most equitable that the first remedy of the creditor, whose debt is1 secured by mortgage, should be Upon the mortgage against the particular estate assigned to him for'his indemnity. That estate is specially appropriated to the payment of the debt, and no injustice is done' to the mortgagor in applying it ip the first instance to the satisfaction of the creditor.- But it would be an unjust restraint of the exercise of the rights of the mortgagee', to interdict a suit Upon his bond, or to postpone that remedy until the security of the mortgaged premises is first exhausted. That security may be inadequate, and it may be important to the creditor to obtain a judgment as speedily as practicable, for the greater safety of his debt. A due regard to the just rights of the mortgagee requires that he should be allowed the full benefit of all his securities. On this principle the rule rests that the mortgagee may at the same time sue at law upon his bond and in this court upon his mortgage ; and to give a substantial value to this right, he must be permitted to prosecute his suits in the two courts with effect, and to reap the fruit of both, and of either first in order without prejudice to the other, until full satisfaction of the debt is obtained. But if the mortgagee is restricted in his remedy in this court on his mortgage to a strict foreclosure, and has no right to a decree for a sale of the estate, and if the decree of foreclosure suspends the obligation of the mortgagor to pay the debt, and is opened, and the right to redeem revived by a subsequent action at law upon the bond, and if the mortgagee is not at liberty to turn the estate, by a subsequent sale, into money, and in case it proves deficient, to proceed against the mortgagor upon his personal contract for the deficiency, without waiving his foreclosure and avoiding his sale, he obviously has not the full benefit of his securities, or ofhislegal and equitable remedies upon them; and these restrictions upon the mortgagee in thus fettering him in his operations, must tend, in their consequences, to the injury also of the mortgagor; for if the mortgagee, in case of his electing to proceed first upon his mortgage, must submit, in the exercise of his rights, to such unequal terms, no prudent or discreet creditor will pursue that remedy when the estate is believed *to be of less value than the amount of the debt, and he has any reasonable chance of obtaining any satisfaction from other property of the debtor. Recourse would, in such cases, probably, be had, in the first instance, to an action of law, upon the bond against the mortgagor and his general estate, and the premises specifically pledged to secure the debt, though intended to be primarily applied to the payment of it, would be reserved for the satisfaction of the residue which he should fail to obtainfrom other sources. It would be in cases only where the mortgaged premises exceed the amount of the debt in value, the mortgagee would be tempted to elect the remedy of a strict foreclosure. But in such cases it would be manifestly inequitable and unjust to the mortgagor to permit the foreclosure, for that would be to restore the rigor of the ancient rule, and tolerate the sacrifice of the interest of the debtor to the cupidity of the creditor; yet unless the court has the power to impose, the debtor must submit to the sacrifice. Must a court of equity then permit such an unconscionable use to be made of the security; or must it not have the jurisdiction to administer relief by directing a sale instead of a foreclosure 1 The opposition of the mortgagee to a sale, would indeed be more plausible than that of the mortgagor; as there is ground for contending, that the mortgagee, in default of the mortgagor to redeem, may, at his election, have the estate sold, or the equity of redemption barred, by a strict foreclosure without a sale. But that opposition and claim of the mortgagee, must often yield to the superior equity of the mortgagor in favor of a sale ; and the court is the more inclined to listen to his application, from the circumstance that the mortgagee is permitted to become a purchaser at a sale; and the court has the power, by the conditions of the decree, to protect him from wrong or injury from the proceedings. And if the court may, when equity requires it, interpose at the instance of the mortgagor to direct a sale, when the estate is of greater value than the debt, in order to prevent a strict foreclosure to his prejudice; so it ought, on the same principle, to extend the same relief to the mortgagee, by ordering a sale when the premises are insufficient to satisfy the *demand, in order to enable him to ob tain the benefit of his security, without waiving his right to claim the deficiency from the debtor’s other property. Where the mortgagee has no personal demand against the mortgagor ; or where the pledge, if not redeemed, is, by the agreement of the parties, to be taken for the debt; a strict foreclosure would be the fit and appropriate remedy for the mortgagee, and would produce no injurious consequences to either of the contracting parties.' But where the estate is pledged as collateral security merely, for the payment of the debt, a strict foreclosure would often be unjust and inequitable, disappoint the intentions of the parties, defeat the object of the security, or pervert it to unconscionable purposes, and sometimes produce the most serious injury to the mortgagor, or inconvenience and loss to the mortgagee. A sale is obviously the true, as it is sometimes the only practicable method of applying the security to the purpose for which it was intended—the satisfaction of the debt. A public sale is the truest test of the value of the estate, as a resource for the payment of the demand; and to such a sale, upon sufficient notice, and under the direction of a master by whom it will be fairly conducted, neither party can justly object: it is the best mode of disposing of the property, for the interest of both. If the estate is worth more than the debt, the mortgagor will have the benefit of the surplus; and if it produces, by a fair sale of it,less than that amount due upon the bond, the debtor ought to make up the deficiency. The effect of a strict foreclosure, is to decree the estate to the mortgagee; but the creditor is entitled to the payment of the debt in money, and cannot, injustice or equity, be compelled to take the land for his satisfaction. The obligation of the debtor is, to pay the debt in money; and that obligation is not satisfied by a surrender .of his equity of redemption in the estate pledged to secure it. The security is collateral, and to be applied towards the satisfaction of the debt, and not to be substituted for the payment of it. To compel the mortgagee to take the land in payment of the debt, and to submit to the loss that may accrue upon the subsequent sale of it, would be to deprive him of the full benefit of his security, and impair the obligation of his *contract. A decree of sale, therefore, is the remedy which, according to the nature of the contract of the mortgage as it is now understood, and upon principles of equity, and grounds of general-policy as between debtor and creditor, this court worn! prefer to the decree of strict foreclosure, and would adopt as the general1 course of the court, if it possesses the right, either upon common law principles or statutory provisions, to exercise the jurisdiction; and its discretion is not bound by former decisions. But it is contended, that by the rules of the common law, the equity of redemption of the mortgagor cannot be barred or extinguished in any other way than by a decree of strict foreclosure; and that a sale and master’s deed of conveyance without such a decree, though made under the decretal order of this court expressly directing them, will be ineffectual and inoperative to preclude or bar the right to redeem ; and I am referred to elementary writers, and adjudged cases, as supporting these positions. On my first examination of this cause, my impressions’were, that these points had been settled by my predecessors ; and that the validity of sales of mortgaged premises under a decree of this court, without a formal decree of foreclosure of the equity of redemption, for the satisfaction of the debt, was conclusively established; and on that ground my decree was founded. I have, upon this rehearing, again recurred to those decisions ; and I continue to consider them decisive of the question. But as the complainant insists strongly, that judicial sales of mortgaged premises are innovations, not warranted by common law principles or by statutory provisions ; and that the -former decisions of this court do not govern this case; or if they do, that they are so palpably erroneous, that they ought not to be followed, I have been induced to examine the subject more at large ; and I have done if the more willingly, because I consider it important that the question should be definitely settled, and for ever put at rest. One ground upon which the decree of foreclosure was contended to be indispensable, is that the mortgagee before foreclosure, has but a chattel interest in the land; and a sale by him, can pass nothing but the chattel interest which he *possesses. The cases cited in support of this position, go to show, that a mortgage, though in fee, is held to be personal property; and that the executor or administrator, and not the heir of the mortgagee, is entitled to the money secured by it. And this rule results from the principle that the mortgage is a mere security for the payment of the debt. It is the money secured by the mortgage, and mot the land mortgaged, that belongs to themortgagee ; and the executor or administrator of the mortgagee, necessarily becomes entitled to the security, as an incident to the debt. But it does not follow that because the benefit of the mortgage, as1 a security for the debt, as long as the debt continues to subsist, belongs to the executor, and not to the heir, that the security cannot be sold at the instance of the mortgagee, under the decree of this court for the satisfaction of the debt; nor do the cases cited by the complainant establish that doctrine. ■ It seems to be supposed by the complainant that the sale ordered by the court in such cases, is a sale of the interest of the mortgagee in the mortgaged premises, as a security for the debt. But that is a mistake; it is the land itself, and the whole estate and interest, as well of the mortgagor as of the mortgagee, that is ordered to be sold. The mortgagee has competent power, by his own act, to sell and transfer his debt, and the securities he holds for the payment of it, to another without consulting the mortgagor on the subject, or applying to the court for an order to authorize the transfer. But a private sale by the mortgagee operates only to transfer his mortgage interest to the purchaser; and the purchaser under the mortgagee takes subject to the mortgage and the right of redemption. And Chancellor Kent, in the case of Hart v. Ten Eyck, truly observes, that where a freehold estate is held by way of mortgage for a debt, the creditor must first obtain a decree for sale, under a bill of foreclosure, before an effectual sale can be made to bar the equity of redemption. Whenever, therefore, the mortgagee comes into this court for a decree of sale, it is the sale of the pledge which he holds for the payment of his debt, the land which is vested in him as mortgagee, that is the object of his bill; and the purpose of the decretal order is to authorize the *sale of that estate, and to enable the master to convey it to the purchaser. The question, therefore, is, whether the court has the power to authorize such á sale ? It is admitted that the present practice of this court is to decree a sale of the mortgaged premises, and not a foreclosure. This practice has continued so long, and been so general,, that my two immediate predecessors have recognised it as the established course of the court. In the case of Miffs v. Dennis and others, (3 J.ohn. Ch. Rep. 367,) a biff was filed against several defendants, all of whom, except one, were heirs at law of the mortgagor, and two of those heirs were infants,, and the rest adults : the bill was taken pro confesso against the adults, and the infants appeared and answered by their guardian. At the hearing, a decree was made for the 'sale of the mortgaged premises; and' Chancellor Kent, in giving his reasons for the order made in the cáuse, after adverting to the course of proceeding in England,' expressly states, that the practice with us has been to sell, and not to foreclose, as well where infants as where adults are concerned; and he observed that he thought that course must generally be most beneficial to the infant, as well as to the creditor ; and there can be no doubt, he says, of the authority of the court to pursue it. The reason of the special application in that case, for the order to sell, seems to have been the infancy of two of the defendants ; and the directions of the chancellor show that the questions submitted to his consideration had reference to the interest of the infants solely. One of the points related to the sale of the estate, and the chancellor gives his opinion to the effect already stated, in favor of the power of this court to sell. It may bo said that he puts the right to decree the sale of the infant’s interest upon the power to change the estates of infants from real to personal property, which he supposes the court to possess ; and he certainly does refer to his view of the jurisdiction of the court over the estates of infants, as one ground of his opinion. But his decree embraced the shares of the adult heirs, as well as those of the infants, and he consequently could not have *reposed himself solely upon the special jurisdiction, he understood himself to have, in cases of infancy; but must have acted upon the general power of the court to direct the sale. In the case of Dunkley í>. Van Burén and others, (3 Johns. Ch. Rep. 330,) a decretal order directing the premises . to be sold by a master, is spoken of as the usual decree of the court. And the chancellor, adverting to the remedies of the mortgagee upon his securities, intimates the opinion, that a subsequent suit upon the bond, ¿or the remainder of the debt left unsatisfied upon the sale of the mortgaged premises, does not revive the equity of redemption; and that the English doctrine, that a subsequent suit opens a decree of foreclosure, has no application to the case of a ju- ' dicial sale under a decree ; thus distinctly recognising the power of the court to direct a sale of mortgaged premises, and speaking of the exercise of that power as the usual course of the court. But the learned jurist who pronounced these decisions, is said to have expressed the opinion in the case of Hart v. Ten Eyck, that the mortgagee must obtain a foreclosure and an order of sale, to preclude the right to redeem. In the case of Hart v. Ten Eyck, (3 Johns. Ch. Rep. 100, 101,) Chancellor Kent, in noticing the distinction between -proceedings of creditors upon mortgages of real estate and of personal property, observes, that the creditor who holds stock in mortgage, is not bound to wait for a hill -of foreclosure and decree of sale, as in the .case of a mortgage of land; but may sell, on reasonable previous notice, to the debtor to redeem. And in a subsequent part of his opinion, .he observes, that “ if a freehold .estate be ¡held by way -of mortgage for a debt, then -it -may be laid down as an invariable rule, that the creditor must first obtain a .decree ■for a sale under a bill of foreclosure.” These are his expressions. I do not understand them to convey the opinion that the mortgagee must obtain a foreclosure to preclude the right to redeem. It is the decree of .sale on a bill of foreclosure, that it stated to be necessary. The positions are, that the mortgagee .of land must “ wait for a bill of foreclosure and a *decr-ee of sale,” and that the creditor must first obtain a decree for a sale under a bill of for.eclo sure.” And I understand the learned judge who advances them, to mean that the mortgagee -must file his bill -upon his mortgage, and obtain a decree for the sale of ¡the mortgaged premises, before a valid sale can be made, or an effectual title given to a purchaser. Now, the ¡bill filed by the mortgagee, to enforce his security against the mortgaged premises, whether the object and prayer of the hill be for a foreclosure or a sale, is ordinarily called -a bill of foreclosure. Those .terms are thus applied by Wilmot in his treatise on mortgages, and by other writers on the subject. And in the two cases of Dunkley v. Van Burén and others and Mills v. Dennis and others, already mentioned, both decided -by Chancellor Kent, -and in which there were decrees of sale and no foreclosures, as well as in the cases of Brinkerhoff v. Thallhimer, and -Cambpell v. Macomb, hereafter cited, the bills are expressly stated to have been bills ,of foreclosure. And from .this mode of expression in those cases, and which often -occurs in his judicial .opinions, it is fairly to be intended, that when the chancellor spoke of a decree of sale on a bill .of foreclosure, in the case .of Hart against. T.en Eyck, he had reference to the usual course of the court, in decreeing a sale of mortgaged premises on a bill filed by the mortgagee upon the mortgage. In this sense of his expressions, his opinion in that case :is in -ac- - cordance with his subsequent decisions; and is in itself an additional authority in support of the power of the court to decree a sale of mortgaged premises, to .satisfy the debt of the mortgagee. That such was the opinion of that learned judge, is apparent from his decisions, .and the reasons given by him for them, .as well in the cases already cited, as in those which follow. Thus in the case of Brinckerhoffu. Thallhimer, (2 Johns. ■Ch. Rep. 486,) on a bill to foreclose a mortgage, and which bill was taken pro confesso, a decree was made by him in the usual form, for the sale of the mortgaged premises, or so much thereof as should be necessary to answer the purposes of the decree. *So in the case of Campbell v. .McComb, (4 Johns. Ch. Rep. 534,) a decree was made for the sale of the mortgaged premises, for the payment of the debt. And in neither of these cases, does any decree of foreclosure appear to have been entered or made. In the case of Ferine v. Dunn, (3 Johns. Ch. Rep. 140,) which was a bill to redeem a mortgage., a distinction is taken between a decree of strict foreclosure, and a decree of sale. The legal effect of each is briefly stated, and a decided preference given to the decree of .sale, which is pronounced to be the usual course of .the court. Treating of the terms of redemption .allowed .the mortgagor on a .bill to foreclose, the chancellor observes, that, the rule and practice, of which he speaks, apply only to cases of strict foreclosure, when, by the decree, the equity of redemption is „ barred, and the complete title is vested in the mortgagee. The rule, he says, does not apply to cases of decrees for the sale of the mortgaged premises, according to our usual practice. The mortgagor, in such cases, he observes, is not subjected to a severe and absolute forfeiture of ¡all his right; but he has a chance of the surplus moneys .arising from the sale, and is placed upon the same footing of equality with debtors against whom judgments'are rendered, and executions awarded at law. In the case of Kershaw u. Thompson, (4 John. Ch. Rep 609,) there had been a sale of the mortgaged premises under a decree of the court in the cause; and the application was by the purchaser, to be put into possession of the premises, which were withheld from him by the wife of the mortgagor. The decree under which the petitioner purchased was in these terms : “ That the rights of Thompson and his wife be sold by a master, and that he execute a deed to the purchaser, and bring the purchase money into court.” , And the chancellor, in his opinion, states, that a bill to foreclose the equity of redemption, is a suit concerning the realty and in rem,; and the power that can dispose of the fee, must control the possession. The parties to the suit are bound by the decree : their interests and rights are concluded by it; and it would be very *unfit and unreasonable that the defendant, whose right and title has been passed upon and foreclosed by the decree, should be able to retain the possession in despite of the court. These decisions of Chancellor Kent, with his exposition of the grounds of them, most clearly show him to have held a decided opinion in favor of the jurisdiction of the court to direct a sale of the mortgaged premises, instead of decreeing a strict foreclosure; and that he considered a decree of sale to be the usual course of the court. The same opinion was entertained by the late chancellor. In the case of Bridgen v. Carhartt, (1 Hopkins, 234,) the complainant, holding two mortgages against the defendant upon distinct premises, filed his bill upon his mortgages, to obtain satisfaction of his demands. A sale was decreed ; and one of the mortgaged tracts being insufficient in value to pay the sum charged upon it, and the other mortgaged tract exceeding in value the debt for which it was mortgaged, the complainant asked the court to direct that the excess arising from the sale of one of the mortgaged tracts, beyond the sum with which that tract was charged, should be applied to satisfy so much of the debt secured by the other mortgage, as might not be received by the sale of the premises thereby mortgaged. The application was refused : and the chancellor, in the course of his reasoning on the subject, observes, that “ the situation of the complainant in respect to the debt secured by the inadequate mortgage, was that of any other mortgage creditor, where the land is of less value than the sum for which it is mortgaged; that the mortgage is a specific incumbrance upon the, land for the debt, but that the bond binds the debtor for the whole debt, whether the land is a sufficient or an insufficient security; and that the remedy of the complainant for that part of the debt which is not obtained from the land, is upon the bond.” This case appears to me to fully warrant the conclusion, that the chancellor who decided it, held the opinion that the mortgagee has the right first to exhaust his security by a ' sale of the land; and if his debt is not fully satisfied by *the proceeds, to pursue his remedy on his bond for the deficiency. For it is obvious that the mortgaged premises must first be sold, and the avails applied towards the payment of the debt, before the remedy can be had upon the bond for that part of the demand which is not obtained from the land. But if any doubt could remain of the opinion of Chancellor Sandford on the subject, the question is put at rest by the case of Sedgwick v. Fish, (1 Hopkins, 594,) in which he expressly declares, that the sale of mortgaged premises under decrees of this court, has long been an established practice ; and that the proceeding is, in effect, an execution for the mortgage debt against the mortgaged land. But that the ancient practice, of a decree of a foreclosure of the equity of redemption, without a sale, has not been abolished; and that the mortgagee may still take a decree for a mere foreclosure. Thus, it is seen that Chancellor Sandford expressly recognised the sale of mortgaged premises, as the well established and long settled course of the court; and regarded the decree of strict foreclosure as an ancient praetice, which had been disused, though not abolished, and which the' mortgagee, though at liberty, is not bound to pursue. It was intimated that Chancellor Sandford merely conformed to the practice of the court as he found it, and never gave the sanction of his authority to the principle on which it rests. No case appears to have come before him, in which the jurisdiction was directly drawn in question ; but from the continual exercise of the power during the time he sat in the court, and from his recognition of the practice as the course of the court, expressing no doubt of the principle it involved, but alluding to it, as he did in the two cases to which I have referred, with manifest approbation, he must be understood as giving it his sanction; and his opinions thus judicially pronounced, want nothing but the form of an express decision on the point, to give them the weight of authority. But the case of Lansing against the Albany Insurance Company, (1 Hopkins, 102,) was a direct decision upon *the point. It was a bill of review, seeking to reverse a prior decree of the court for the sale of mortgaged premises, as erroneous, on the ground, amongst other reasons, that it is contrary to law to decree a sale of lands mortgaged in fee. The defendants demurred to the bill. The chancellor being a stockholder in the Albany Insurance Company, declined to hear the cause, and it was heard before the chief justice, who being of opinion that the sale was legal, and that the other objections to the decree were untenable, al lowed the demurrer; and in his reasons for his decree he declared that sales on mortgages in fee have been directed by this court since its first organization, or at least since the passing of the statute authorizing sales on mortgages, and that at present such sales are expressly authorized by statute. It is alleged that the chief justice was incorrect in supposing that the court was in the practice of decreeing sales of mortgaged premises at so early a period as the passage of the act to which he refers. But without tracing the practice to its origin, it is sufficient to say, that the act now in force recognising the jurisdiction, and authorizing sales by masters, was passed in 1813, at which time it is believed that the court was in the constant exercise of the power: and the case of De Labigarre and wife, v. Bush, furnishes an example of such a decree at a much earlier period. In the case of De Labigarre and wife v. Bush, (2 Johns. Rep. 490,) an order was made in 1806 for the sale of the mortgaged premises to satisfy the debt: the cause was much litigated, and the order was appealed from, and modified by the court for the correction of errors. It was a cause of great interest, involved important points, and was contested by some of the ablest counsel then at the bar; and yet no question was made of the power of the court to order the sale. But it was assumed to be within the acknowledged jurisdiction of this court; and the court of the last resort, in modifying the decree, acted upon it as in the usual course of the court of chancery. It must, therefore, have been the understanding of the judges of Both courts at that day, that the decree for the sale of mortgaged premises by this court, was within its powers. It was suggested that this cause arose under the act then in force concerning the absent mortgagors, and that it is to be regarded as an exception to the general rule, and the decree of sale as authorized by the special provisions of that act. I see no evidence on the face of the case as reported, to show it to have been the case of an absent mortgagor. The bill was filed oh the 11th of October, 1800, by Bush against P. W. Livingston, Peter De Labigarre, and Margaret his wife, certain judgment creditors of De Labigarre, and Andrew Stockholm, for the foreclosure of a mortgage executed by De Labigarre and wife to Livingston, and assigned by him to Bush. An answer of De Labigarre and wife was put in without oath, and the other parties having answered or disclaimed, such further proceedings were had in the cause, that an order was, on the 24th of May, 1802, entered therein for the sale of the mortgaged premises. On the 15th of June, 1802, on the petition of De Labigarre and wife, the sale was suspended and leave given to them to put in a further and more perfect answer; and on the 28th of August they filed their answer. After some intermediate proceedings, mentioned in the report of the case, an order was made on the 5th of March, 1805, referring it to a master to report the sum due, for principal and interest to the complainant, and the sum due on the mortgage, and also the value of the mortgaged premises. On the 4th of April, 1805, the report of the master came in ; it was con firmed on the 6th of that month, and on the 7th of April, 1806, the chancellor ordered that the mortgaged premises should be sold; and that all proper parties should join the sale; and that the moneys arising therefrom should be brought into court, to be applied in the first place to pay the amount reported due the complainant, on his securities, with interest; and the residue to abide the further order of the court. It was from this order that De Labigarre and wife appealed. The proceedings in cause then, from the filing of the *bill to the appeal from the order of sale, are according to the usual course of the court in ordinary cases of bills for the foreclosure and sale of mortgaged premises. I discern no trace in them of any proceeding peculiar to the case of an absent mortgagor, or indicating that De Labigarre and wife were proceeded against as absent mortgagors under the act. But if the suit was, in any stage of it, prosecuted against those defendants as absent mortgagors, it took a different turn before the decree of sale of the 7th of April, 1806: and that decree must have been made under the general powers of the court, and not under the special provisions of the act relative to proceedings under absent mortgagors. To authorize a decree for the sale of mortgaged premises, in a suit in this court against an absent=mortgagor, under the provisions of the act then in force, for making "ocess in courts of equity effectual against mortgagors who absconded or refused to appear, the bill must be taken pro confesso against the mortgagor, before the court decreed a sale of the mortgaged premises; and the order for taking the bill pro confesso must be founded on a previous order, Which the court, upon an affidavit that the mortgagor had withdrawn out of the state, or could not, upon due enquiry, be found therein so as to be served with process, was authorized to make, requiring him to appear, by the day named therein; and if the mortgagor did not appear, the court might, on satisfactory proof of the publication of the order, as directed by the act, decree the sale. But if afterwards he mortgagor, at any time before the sale, caused his appearance to be entered, and paid the costs, the sale was to be stayed, and thereupon, such appearance being entered, the proceedings subsequently to be had in the cause, were to be such as are had in cases where the original appearance is entered in due season. Now, in the case of Bush v. Labigarre and wife, the bill does not appear to have been taken joro confesso against the mortgagors ; and it is, moreover, distinctly stated, that they did appear, and put in an answer to the bill. The first order *of sale was set aside on their petition ; and if they were not in court before, they must have entered their appearance when they put in their answer, under the leave given them by the court for that purpose; and having appeared," they were entitled, in the further progress of the cause, to all the privileges of other defendants ; and no decree could be made against them, which could mot be made against other mortgagors, by the ordinary powers of the court, and according to the usual forms of proceeding. With these judicial opinions of my predecessors, and an express adjudication of this court before me, sanctioning a decree for the sale of mortgaged premises, on the prayer of the mortgagee, to satisfy the debt secured by the mortgage, can I pronounce the sale in this case to have been illegal and void,'and on that ground allow the complainant to redeem the estate 1 My own convictions are in accordance with those of my predecessors; but if I had differed from them in opinion, the error on their part must have been gross and palpable, to induce me to overrule their decisions. But the complaint insisted that the equity of redemption, if foreclosed by the sale, was opened by the subsequent proceedings of the defendant upon his judgment; and that he is therefore entitled to redeem the premises, notwithstanding the sale. This point, in that view of it, is involved in the first: for if the purchases are suffered to be redeemed, the sale is nugatory. But if the court has the jurisdiction to decree a sale, that sale must be conclusive, and the title of the purchaser must be absolute. In the present case, part of the premises was purchased by the mortgagor, but the residue was sold to strangers; and in other cases, strangers frequently became the purchasers of the whole: but whoever the purchasers may be, the title they acquire by a master’s deed must be irredeemable, or the sale would be illusory. The rule, that a foreclosure in equity is opened by a subsequent action at law upon the bond, is founded on this principle: that the mortgagee who obtains a decree of foreclosure, as long as he holds under it, must be deemed *to take the estate for the debt: and if he afterwards proceeds, as he may do, on his bond for the recovery of the debt, he must be deemed to waive his decree, and lets in the mortgagor to the right of redemption. But that rule does not apply to judicial sales. The object of the sale is to convert the estate into money, to be applied to the payment of the debt; and when the proceeds of the sale are thus applied, the whole or a portion of the debt equal to the avails of the mortgaged premises, is satisfied; and the action upon the bond, is for the residue and balance only of the debt which is left unpaid. The purchaser pays the value of the estate, and the mortgagor obtains the full benefit of it, by the application of the purchase money to the payment or reduction of his debt. If the proceeds of the sale are insufficient to satisfy the debt, he remains liable for the deficiency, and he cannot complain of being called upon to pay it, and upon no principle of equity, could he be permitted for that cause to disturb the sale, or reclaim the premises from the purchaser. In the case of Hatch v. White, (2 Gallison, 152,) Judge Story, in deciding the question before him, was led to examine the position, that a decree of foreclosure is opened by a subsequent action against the mortgagor, for the remainder of the debt left unsatisfied upon the sale of the mortgaged premises; and upon a review of the decisions of the English court of chancery on the point, and a full consideration of- the principles of equity applicable to it, he expresses a clear and decided opinion against the rule, as involving an unsound and indefensible principle. And Chancellor Kent, in the case of Duncan v. Van Burén, says, that if the point was before him, he should be much inclined to agree in opinion with Judge Story, that there is no just foundation for the doctrine, and that he should especially doubt of its application in the case of a judicial sale under a decree; and in the case of Ferine v. Dunn, he intimates a strong opinion to the same effect. The mortgagee, he says, in the case of a sale of the mortgaged premises under a decree of the court, has a chance of the surplus money arising from the sale; and is placed upon *the same footing of equahty with debtors against whom judgments are rendered and executions issued. And if so, the mortgagee must surely be hable for the residue of the debt, which the sale of the mortgaged premises does not satisfy, on the same principle that the debtor remains liable for the residue of the judgment debt, which is not made by the execution; and a subsequent suit at law of the mortgagee will no more open the sale, and revive the right to redeem the mortgaged premises, than a subsequent execution on the judgment against the debtor will entitle him to open the sales under the first execution and redeem the property that was sold. The intimation of Chancellor Sandford, in the case.of Bridgen v. Carhartt, that the remedy of the mortgagee for that part of the debt which is not obtained from the land is upon the bond, clearly shows that his opinion coincided with that of Chancellor Kent, that a subsequent suit at law for the residue of the debt, which the mortgaged premises fails to satisfy, does not open the sale, or revive the right to redeem. This court, then, has already settled the principles which are to govern this case; and has judicially expressed the decided opinion, that the court has the jurisdiction to decree a sale of mortgaged premises; and that a subsequent suit for the residue of the debt does not open the decree. But it is said that the practice of this court in decreeing the sale of mortgaged premises, when it was introduced, was an innovation upon the course of proceeding in the English court of chancery; and how far it may be so, I propose presently to enquire. But if it was so, it violated no rule of law, but was in conformity to the principles of equity applicable to the contract of debtor and creditor; and .this court, therefore, in adopting it, acted up to its own principles, and did no more than mete to the mortgagee the measure of equity to which he was entitled. I proceed briefly to inquire how far the course of proceeding on mortgages, in this court, does differ from that of the English court of chancery; and whether we divide from them in principle, or in points of practice only. In *the origin of this branch of the jurisdiction of the court when equity interposed to relieve the mortgagor from the forfeiture of his legal estate, the form of the remedy would naturally be, to allow the defaulter to redeem the estate, upon the performance of the original condition, by the payment of the money by a given day; and from this equity resulted the rule, that to extinguish or bar the right to redeem, the mortgagor must be called upon by the process of the court to pay the debt and redeem the estate within a limited time, or to submit to have the door to redemption closed against him. These remedies still continue in force, both in England and in this country ; but with us, the rule requiring a strict foreclosure to bar the equity of redemption, has been superseded by the decree of sale, as the general course of the court; while in England, the ancient form of strict foreclosure still continues to be the course of proceeding on mortgages of estates in possession and has given way but partially to the decree of sale. In both countries, the old rule of foreclosure has been relaxed, and decrees of sale admitted as a substitute; and they differ only in the extent to which the relaxation has been carried. But the principle on which a decree for a sale is partially admitted in England, fully justified this court in substituting it, (if deemed necessary or expedient) as the general course of practice in this country. The principle is, that the mortgage being now regarded and treated as a contract, pledging the land to secure the payment of the debt; and not as a conveyance, creating an absolute estate, defeasible by the performance of the condition; the sale of the land to satisfy the debt, on the default of the debtor to discharge it, has become an appropriate remedy for the mortgagee upon the security, and may be substituted for the foreclosure of the right to redeem, whenever the strict foreclosure is inadequate, or not adapted to the purposes of equity. Now, the effect df the strict foreclosure, is to vest the mortgagee with the absolute ownership of the land, which he never intended to purchase ; while the sale of the pledge restores to him the money he loaned, and the repayment of which was the object of his Contract, and ought to be the fruit of his security. And it follows, that in this country, where the mortgage is generally understood to be a mere security for money, (and lands are by law subject to the payment of debt,) the right to sell, or the power to compel a sale of the estate in mortgage, is essential to the efficacy and value of the security, and is necessarily incident to the contract. When the security consists of the pledge of stocks, personal effects or chattels real, the remedy in both countries is admitted to be by a sale of the pledge for the satisfaction of the debt; and why is it the same remedy may not be applied to the mortgages of real estate, which are equally understood to be collateral ecurities, merely for the personal contracts of the mortgagor ? The English court of chancery, however, notwithstanding the change of the mortgage contract, from a conditional sale to a collateral security, adheres, as a general rule, to the course of proceeding "by foreclosure instead of sale. But that court does not adhere to that course as a matter of necessity, or because any serious doubt is entertained of its power to substitute a sale; but because the change is not .deemed expedient. But the preference given by the court to the foreclosure as a rule of practice, could not bind this court to the same course of proceeding, nor preclude us from substituting the decree for the sale of the mortgaged premises, as the general course of this court, if a sale be a more suitable remedy, in this country, than a strict foreclosure. There are sound reasons for requiring the sanction of a court to such a sale, and the superintendence of an officer of the court in conducting it. But there can be no solid objection, in principle, to a judicial sale of real estate, pledged by way of mortgage as a security for the satisfaction of the debt, on the application, or with "the consent of the creditor, to whom it is pledged. The title is vested in the creditor, and the debt is owing to him; the form of the instrument by which the security is created, entitles him to the land itself, on the default of payment of the debt; and the substance of the contract is, that the land shall stand as security for the debt, to be applied, *on default of payment by the debtor, to the satisfaction of the creditor ; and if the creditor consents to the sale of the pledge, for the satisfaction of the debt, the debtor has no just cause of complaint; for he reaps the fruit of the estate in mortgage, by the application of the proceeds to the discharge of the debt. It is obviously for the benefit of the mortgagor that the sale should take place, in preference to the foreclosure, for most generally the pledge exceeds the value of the debt it is given to secure; and the mortgagor, in the case of a sale, will be entitled to the overplus, if the proceeds shall exceed the amount of the debt. And, moreover, as the mortgagee has a double security for his money, the personal bond of the mortgagor and the estate vested in him by the mortgage, if, as has been before remarked, his remedy upon his mortgage was confined to a strict foreclosure, he would never pursue it, until he had first exhausted his remedy against the mortgagor upon his bond, unless the value of the estate greatly exceeded the amount of the debt. The consequence would be, that in all cases where the- strict foreclosure would benefit him and prejudice the mortgagor, the mortgage would be foreclosed; but where the estate was deemed a slender security for the debt, the remedy on the bond would be first pursued, and the mortgage kept in reserve for making up whatever deficiency there might be. The force of these considerations has been felt by the English courts ; and Lord Erskine,-in the case of Perry v. Barker, (13 Vesey, 197,) admits that a decree for the sale of the estate, instead of a foreclosure, would be more analogous to the relative situation of lender and borrower; and that the English court of chancery on decreeing a foreclosure instead of a sale of mortgaged premises, does not act altogether up to its own principle. He manifestly prefers the course that prevails in Ireland, where the decree is for a sale instead of a foreclosure; and where, if the sale produces more than the debt, the surplus goes to *the mortgagor ; if less, the mortgagee has his remedy for the difference. It is obvious, then, that the opinion of Lord Erskine was, that the court in which he sat possessed the power to decree a sale instead of a foreclosure; and that the sale of the mortgaged premises, for the satisfaction of the debt, would be more in accordance with the principles of equity, as between debtor and creditor, than the practice which prevailed in the court, of decreeing a forclosure. But notwithstanding the superior advantages of a sale; and the weight of Lord Erskine’s opinion in its favor, the general course of the court of chancery in England, upon mortgages of estates in possession, has been to decree a foreclosure and not a sale of the estate. Still, however, that court, in cases of infant mortgagors, has deviated from the general rule, and decreed a sale. Thus in the case of Booth v. Rich, (1 Vern. 295,) which occurred prior to 1684, there being an infant party to the suit, the court held that he could not be foreclosed without a day to show cause against the decree after'he should attain his full age of twenty-one years ; but that the proper way, in such a case, was to decree the land to be sold to pay the debt, and that such a decree would bind the infant. But the rule laid down in the case of Booth v. Rich, would seem to have fallen in after times into disuse; for Sir William Grant, the master of the rolls in 1811, when it was proposed, on the authority of that case, to take a decree of sale, instead of the usual decree, as more; advantageous to the infant, said that the modem practice was to foreclose infants; and if no instance could be found in which the case cited had been followed, he would not make the precedent of a decree of sale ; and no such case being produced, the usual decree was made for a foreclosure, with a day to show cause. From the reason given by Sir William Grant, for his refusal to direct a sale, it is manifest that he considered the sale, not as wrong in principle, but as against the course and practice of the court. He expressed no doubt of his right to make the decree, but he refused to exercise the power ^because he would not make the precedent. He did not question,the authority of the case which was cited, but said that the modern practice was to foreclose infants, and he did not incline to change it. But his refusal to make the precedent, implies the power to make it if he had seen fit to do so. If he had distrusted his jurisdiction, he would have put his refusal on that ground, and not on his disinclination to act. But in the case of Monday v. Monday, (1 Ves. & Beames, 228,) decided in 1813, two years after the decree of Sir William Grant, a bill being filed against the infant heirs of the mortgagor and others, praying for a foreclosure or sale; the counsel for the complainants prayed a sale ; observing, that though they could not produce an instance, it might perhaps be done, as the court had in many respects extended its jurisdiction for the benefit Of infants ; and Lord Eldon said, it would be too much to let an infant be foreclosed, when, if the mortgagee will consent to a sale, a surplus may be got for the benefit of the infant. He said, that if there was no precedent, he would make one; and he referred it to a master, to enquire whether it would be for the benefit of the infant that the estate should be sold. Here was an assertion by the chancellor, of the power of the court to depart from the usual course of proceeding, at its discretion, and decree a sale instead of a foreclosure of the mortgaged premises, if the exigencies of the case required it; and he declared, that notwithstanding the modem practice was, as Sir William Grant had stated, to foreclose infants, and the case of Booth v. Rich was admitted to be the only instance of a decree for a sale against an infant mortgagor, and the counsel praying for a sale could not produce an instance where it had been done; yet the chancellor, knowing that he possessed the power, and seeing that justice to the party called for its exercise, very properly determined to grant the prayer for a sale-: and declared, that if there was no precedent for it, he would make one. And lamentable indeed would be the condition of suitors, if the court was precluded by the ‘■mere course of practice, from deviating from the beaten track, and moulding the exercise of its legitimate powers, and adapting its decrees to the exigencies of cases as they arise, to accomplish the purposes of equity and justice. The authority of this case was sought to be obviated, by referring it to the general superintendence and powers of the court in cases of infancy. But if the court had no power to decree a sale, and if there must be a foreclosure to extinguish the equity of redemption, and a sale without a previous foreclosure, even by the order of the court, will pass nothing but the mortgage interest, which are the principles contended for by the complainant, I am at a loss to perceive how the jurisdiction of the court in cases of infancy could give any greater effect to the decree of the court in their case, than in that of adults. The court, in virtue of its general guardianship of infants, may, in the exercise of its legitimate powers, act with a larger discretion when its own ward is a party, than in other cases, and may perhaps extend its aid and protection to infants, when it would give no relief to adults; but the court cannot create or assume a jurisdiction which does not belong to it, for the benefit of infants, any more than for adults. And if, therefore, the chancellor had the power to decree the sale against an infant mortgagor, he would, on the same principle, have had the right to decree it against an adult. And in the case of Dashwood v. Bithazey, (Mosely 196,) a sale was-decreed in the case of an "adult mortgagor, against whom the bill had been taken pro confesso. The case was decided by the master of the rolls in 1729. It is reported by Mosely, and cited by« Powell in his treatise on the law of mortgagee; and the principle it established is there laid down as a settled rule of law. The bill was to foreclose ; and the solicitor-general, of counsel for the complainant, prayed a decree for a sale instead of a foreclosure, because the security was defective, and if they should afterwards sue the defendant on "his bond for perfprmance of covenants, that would open the decree of foreclosure; and he insisted that such decrees for sale were usual. But the master of the rolls said that he had *never known any, but that where the security was defective, it was often indeed referred to a master to set a valuation on an estate, and the complainant was to take it pro tanto. But the sale was decreed in that case, because the - decree was that the bill should be taken pro confesso, and not according to the prayer of the bill. And a case of Norsworthy and Sergeant Maynard was quoted, where the security being defective, the cause stood over, and the complainant filed a supplemental bill, and prayed a sale. No question was made, in this case, of the jurisdiction of. the court to decree the sale; and that jurisdiction must have been understood to belong to the court, or the sale could not have been decreed. The difficulties of the mas ter of. the rolls, were, that such a decree was not according to the prayer of the bill, which was for a foreclosure, and that it was not the usual course of the court to decree a sale : yet, as the bill had been taken pro confesso, he did not consider himself limited in his decree to the prayer for a foreclosure; and he assumed and acted upon the principle, that he was not precluded by the general course of the court from decreeing a sale. From the reference made in this case to the case of Norsworthy and Sergeant Maynard, the practice would seem to have prevailed at that time, to proceed, in cases of defective securities, by a bill praying for a sale; and if such bills were in use, sales must have been decreed upon them. Nor has the English court of chancery confined its exercise of the power of decreeing sales to the cases of infant mortgagors, and bills taken jjro confesso against adults. It clearly appears to have been the settled course of that court, m cases of bills on mortgages of reversionary interests, from an early day, to decree a sale, and not a foreclosure; and on mortgages of advowsons, the same course was pursued. (Wilmot on Mortgages, 95. 2 Powell, 331.) Thus, in the case of How v. Vigures, (Rep. in Ch. 33,) decided in the reign of Charles the First, the bill was upon a mortgage of a dry reversion against the heirs at law of the mortgagor ; and the complainant, who was the *devisee of the mortgagee, being a merchant, and his livelihood consisting in the returns of moneys, prayed that the defendants might pay the demand, or that the premises might be decreed to him to be sold to satisfy it; and the court, on this prayer of the bill, decreed the defendants to pay the amount due upon the mortgage, and in default, decreed the mortgaged premises to the plaintiff, to be sold for the satisfaction of his debt. So in the case of M’Kenzie v. Robertson, (3 Atk. 559,) decided in 1747, the bill was for the foreclosure of a mortgage upon an advowson; and Lord Hardwicke said, that the complainant, instead of bringing a bill of foreclosure, as he had done, should ihave prayed a sale of the advowson. So in the case of a bill filed against the representatives of a mortgagor, (Daniel v. Shipworth, 2 Bro. Ch. Ca. 155,) where the same person is heir and executor, and the personal estate is insufficient to pay the debt, the mortgagee may pay; and the court will decree a sale of the mortgaged premises, in the first instance, to satisfy the debt. These are said to be exceptions to the general rule. They are so; but they take a wide range, and show the power of the court to decree a sale instead of a foreclosure, whenever the purposes of justice shall appear to require it. And if the court had jurisdiction to order a sale in those cases, they must surely have had the same power in every other case, in which they might have chosen to exercise it But such a power must belong to the court in its ordinary jurisdiction, or the Irish court of chancery could not exer cise it; for that court is governed by the same principles that prevail in the court of chancery in England, and derives the jurisdiction it possesses from the same sources. My conclusion, therefore, is, that at the time of the separation of these states from Great Britain, and long before, the usual course of the court of chancery in England, on bills upon mortgages in possession, was to decree a foreclosure, and not a sale of the mortgaged premises ; but that that court possessed, and was in the familiar exercise of *the jurisdiction of decreeing sales, in cases where the nature of the subject or the purposes of justice required that course of proceeding, and the form and prayer of the bill admitted of such a decree. And though the power to decree a sale may have been sparingly exercised, yet the jurisdiction was acknowledged and acted upon, not in a few insulated instances only, but habitually, and to a considerable extent. And the recent case of a decree for the sale of the interest of an infant mortgagor, introduced no new principle, but was an exercise of the ordinary powers of the court. If, then, upon all bills against infant mortgagors, and all bills upon mortgages of reversionary interests or of advowsons, and on bills against the heirs and personal representatives of the mortgagor in special cases, and on bills generally when taken pro confesso against the mortgagor, the court had the power to decree a sale of the mortgaged premises, they surely must have had the same power in other cases, if circumstances had equally called for its exercise. When, therefore, we adopted the common law, and the system of equity engrafted upon it, we were at liberty to apply the principles of that system according to our own policy, and were not bound to follow the course of policy it suited the practice of the English court of chancery to pursue in the exercise of the jurisdiction of the court in mortgage cases, any more than in other cases. Our court was at liberty to adopt the Irish practice, in prefer ence to that which prevailed in the court of chancery m England; and this court, in the course it has prescribed to itself, of decreeing a sale of mortgaged premises instead of a foreclosure, established a rule adapted to the relative situation of lender and borrower, well calculated to give efficiency and value to mortgage securities, and to produce equitable and fair results to both the contracting parties. I am unable to discover any valid obj ection to the jurisdiction; and believing it to be well warranted by the principles of law, and benign and salutary in its operation, I cannot relinquish it merely because the course of practice in the English court of chancery may be different. *But it is contended, that the decree of sale, if it binds the equity of redemption, is a species of foreclosure ; and that on the principles of the English adjudications, the consequence must be, that the subsequent proceedings at law on the judgment, opened'the decree, and revived the right to redeem. It is admitted that the sale, under the decree, is in effect a foreclosure, and conclusively bars the right to redeem; but the consequence does not follow that a subsequent proceeding at law for the difference, where the proceeds are inadequate to the payment of the debt, must open the decree, or revive the right to redeem. The object and legal effect of a foreclosure is to extinguish the equity of redemption, and to vest the premises unconditionally in the mortgagee ; but the purpose of a sale is to convert the estate into money, for the satisfaction of the debt. Neither the foreclosure nor the sale discharges the mortgagor from his obligation on his bond or personal contract, except so far as the debt may be satisfied: the difference between them is, that the sale, by converting the pledge into money, ascertains, with certainty, the proportion of the debt it satisfies, but the foreclosure decrees the estate to the mortgagee, and leaves it in him without furnishing any standard of its value, or ascertaining whether it it is sufficient to pay the debt or not. Hence it is, that the ulterior remedy on the bond, after a sale of the pledge, being for the difference only between the nett proceeds of the estate and the amount of the debt which the sale has ascertained, may be pursued, without disturbing the decree or impeaching the title of the purchaser ; but that the subsequent action on the persona] contract of the debtor, after a decree of foreclosure, being for the whole demand, opens the decree, and reinstates the mortgagor in the right to redeem the estate, which was vested in the creditor for the consideration of the debt he seeks by his' action to recover. These are the principles which regulate the remedy of the mortgagee, upon his mortgage against the estate, and upon his bond against the person, in England, as well as *in this state. No instance can be found, in either country, where a sale of reversionary interests, or other saleable estates, under a decree, has been opened by a suit at law upon the bond, for a deficiency of the proceeds of the sale to satisfy the debt. It is to decrees of strict foreclosure only that the rule is applied; and to such decrees it would be applicable in both countries; for in those cases equity requires that the action at law for the debt, by the creditor, who has taken and holds the estate under a decree of foreclosure, should be enjoined, or the mortgagor remitted to his right to redeem the pledge, by paying the debt. The course has been to refuse the injunction, but to permit the redemption. It is the settled doctrine, therefore, of the court of chancery in England, where the foreclosure of mortgages upon estates in possession is the ordinary course of the court, that the mortgagee may, after the decree of foreclosure, proceed at law upon the bond or personal contract of the mortgagor, for the recovery of his debt; but that if he does elect to pursue his personal remedy, he waives the benefit of his decree of foreclosure, and reinstates the mortgagor in his right to redeem the estate. He cannot at the same time retain the estate, which has become absolute in him by the foreclosure, and recover the debt which is the consideration of that estate, by an action on the bond. Thus : it was decided at the rolls in the case of Dash-wood v. Blythway, (1 Eq. Ca'. Ah. 317,) that if a mortgagee has a decree of foreclosure, though that decree be signed and enrolled, yet if he, after bringing an action of debt on the bond, for the payment of money or performance of the covenant in the mortgage deed, such action opens again the foreclosure, and lets in the equity of redemption of the mortgagor. The principle of this case has been frequently recognised, and may be regarded as the settled rule of law ; but it does not apply to decrees for the sale of the estate, for the sale is for the account of the mortgagor; and if the produce of it exceeds the debt, the mortgagor will be entitled *to the surplus ; and if it falls short, he will remain liable on his personal contract for the deficiency. In the case of Dashwood against Bithazey, which was decided at the same period of time with that of Dashwood against Blythway, and has been before cited for another purpose, this distinction between the principle of foreclosure and sale was admitted and acted upon by the master of the rolls. A sale was there decreed, instead of a foreclosure, upon a bill taken as confessed against the mortgagor, upon the suggestion of the complainant’s counsel that the security was defective, and on the ground that if a foreclosure was decreed, and the defendant should after-wards be sued on his bond, that would open the decree of foreclosure. This case of Dashwood v. Bithazey appears to have been decided in the same year, and at the same term of the court as that of Dashwood v. Blythway, and they are both stated to have been decrees at the rolls. From these and other coincidences, it is very possible that the case in Mosely may be the authority referred to in the abridgment, under the title of Dashwood against Blythway. But whether the cases be the same or not, the case of Dash-wood v. Bithazey, shows that the principle on which the subsequent action on the bond was held to open the previous decree of foreclosure, did not apply to decrees of sale; and that a decree for sale, where the security is defective at that day, might be permitted by the court, as the proper course to obviate the embarrassment which a decree of foreclosure would produce. That was the case, it is true, of a bill taken as confessed; the allegation of the complainant.was therefore admitted;. But the reason of the decision would seem to apply with equal force to decrees Upon pleadings and proofs; for the only material fact to sustain the decree appears to have been the deficiency of the security, which, if not admitted, is always capable of proof. But it does not appear that the principle thus applied to a defective- security, on a bill taken pro confesso, was- ever extended to other cases , on the contrary, the decree of foreclosure has continued to be the *practice of the court ; and hence has arisen .the embarrassments of the mortgagee in pursuing his equitable remedy in that court, upon a defective security. It is certainly not just to permit the mortgagee to extort a double satisfaction from the mortgagor; but it is surely unjust to deny him the benefit of an inadequate security towards the payment of the debt, because he is unwilling to accept it as full satisfaction. To obviate these embarrassments, and to enable him to pursue his remedy at law, without waiving the benefit of his decree, it is desirable to provide some method of applying the Value of the pledge to ■ the satisfaction of the debt; and thus to leave him at liberty, if still unsatisfied, to take his remedy against the mortgagor for the deficiency. In the Irish court of chancery, and with us, that object is effected by a sale under a decree; and such a sale would seem to be the method best adapted to the end. But where that method is not in use, a sense of justice so strongly urges the claim of the creditor to be placed in a condition to sue for the deficiency of an inadequate security, that some other standard of value is often substituted to effect the object. . Thus, in a sister state, where the equity, of redemption is limited to three years after entry of the mortgagee, for the condition bro ken, it is held by the supreme judicial court of the commonwealth, that such a foreclosure by entry and possession, tnough it extinguishes the equity of redemption, is no bar to an action on the bond ; but that the difference between the value of the land and the amount of the debt may be recovered, and that the value of the land may be ascertained by appraisement. And in the case of Amory v. Fair banks, (3 Mass. Rep. 562,) judgment was given on demurrer for the penalty, and execution awarded for the balance due on the bond, after deducting the value of the land according to appraisement. Judge Story, in the case of Hatch v. White, refers to the principle of that decision as the settled law of the state of Massachusetts, and decided the case before him, which arose in that state, in conformity to it. In the course of his opinion, he reviews the English authorities on the point, and holds that *a sale is not indispensable to the right to sue for the deficiency of an inadequate security; but that the actual value of the estate may as well be ascertained while it is in the hands of the mortgagee, as after a sale; and that the fact is not more difficult to settle, than many which ordinarily engage the attention of courts and juries. In England, a practice seems anciently to have prevailed, for the court to cause a valuation to be set upon defective securities, for the purpose of ascertaining the amount at which the mortgagee was to take them.; for the master of the rolls, in 1729, in the case of Dashwood v. Bithazey, observed that where the security was defective, it was often referred to a master to set a valuation on the estate and the plaintiff was to take it pro tanto. He mentioned the case of Hornden v. Tilby, on a bill of foreclosure on the shops in Westminster Hall, as an example of the' practice. But that practice seems afterwards to have been superseded by the process of salé; for in the time of Lord Chancellor Thurlow, a sale is spoken of as the mean for ascertaining the value of the estate. In a note to the case of Aylet v. Hill, (2 Dick, 551,") decided in 1779, where it was held that the mortgagee might proceed at law on his bond, notwithstanding he had obtained a decree of foreclosure, the reporter subjoins the quere, whether, having gotten the pledge, he could do it, that is, sue upon the bond till the pledge was bona fide sold, and it was seen whether it was deficient to answer the whole of the debt; showing that an opinion then prevailed, that a sale by the mortgagee of the premises was the proper course to obtain the avails of the pledge, and in order to entitle him to an action for the difference. Indeed, ■.Lord Thurlow himself appears to have been favourably impressed with the expediency of a public sale, upon previous notice to the mortgagor, as a suitable criterion of the value of mortgaged premises ; and next to a judicial sale, it might, perhaps, under suitable regulations, have the fairest claim to a preference. In' the case of Tooke v. Hartley, (2 Br. C. C. 125,) a *decree of foreclosure was obtained: and the value of the mortgaged premises not being equal to the debt, they were sold at auction, upon notice to the mortgagor, and purchased in by a trustee for the mortgagees. An action was afterwards brought against the executors of the mortgagor, on the bond, for the remainder of the mortgage money unsatisfied by the sale of the estate, and judgment obtained at law. A bill was then filed, praying an injunction, on the ground that the mortgagee having foreclosed the equity of redemption, and taken the pledge, had made his election, and relinquished his right to a personal remedy. The defendants insisted that they were entitled to proceed upon the bond for what the pledge proved insufficient to pay; and that the complainant had notice of the time and place of sale, and might have prevented it by redeeming. The chancellor said, that as it was a new case, he would grant the injunction, on condition of the complainant’s bringing the money into court: but that his opinion was, that the defendant had a right to proceed at law. From this short note of the decision, the point on which it turned, does not distinctly appear: the reporter hasnot given the opinion of the chancellor as to the effect of the sale, or the operation of the suit at law upon the previous decree of foreclosure. But in the case of Tooke v.-, (2 Dickens, 785,) the opinion of Lord Thurlow on those points, is fully and clearly expressed. The language of the reporter is, that his lordship Was clear that the mortgagee, under the mortgagor’s covenant in the mortgage deed, was entitled to be paid what was due on the mortgage ; that so long as he kept the estate, he must take the pledge as a satisfaction, because, not knowing what it would produce, he could not say that anything was due; but if he sold the estate fairly and without collusion, and for the best price, it would then appear whether it produced the amount of the money reported due ; and to the extent of what it did not, the mortgagee had a right, and so it was established, to bring an action against the mortgagor to recover the deficiency. *This case is supposed by Judge Story, in his comments upon it in Hatch v. White, to be the same, notwithstanding the discrepancy in dates, as that reported by Brown, in 2 Bro. C. C. 125 : and if so, it is a full exposition of the grounds on which the decree of Lord Thurlow, as reported by Brown, was understood by Dickens to have been placed by the chancellor. And the report of Dickens is confirmed by Lord Eldon, in the case of Perry v. Barker, where his lordship observed, that he understood Lord Thurlow’s opinion to have been, that whether the estate was sold to a stranger, or remained in the hands of the mortgagee, there was no distinction, but an action might be brought for the difference. It has been suggested that this statement of the opinion of Lord Thurlow differs from that given of it by Dickens ; but I do not perceive the difference. Applying the opinion to the facts of the case, its meaning obviously is, that if the sale of the estate by the mortgagee was bona fide, without collusion, and for the best price, whether it was sold to a stranger, or purchased in by the mortgagee, or by a trustee for him, made no difference : the sale would be equally the standard of value, and the mortgagee entitled to recover the deficiency. And if Lord Thurlow is to be so understood, the rule laid down by him would be, that the mortgagee who obtains a decree of foreclosure, may afterwards sell the estate at auction upon previous notice to the mortgagor; and if it produces less than the amount of the debt, may proceed at law upon the bond against the mortgagor for the deficiency, without waiving the foreclosure, or reviving the right to redeem. But a different opinion is said to, have been held by Lord Eldon, and afterwards by Lord Erskine, in the case of Perry v. Barker. In Perty v. Barker, .(8 Vesey, 537,) the ease was, that the estate Was, after foreclosure, sold at auction by the mortgagee, without notice to the mortgager ; and producing less that the sum reported due, an action was brought on the bond for the difference; upon which a bill was filed, praying a redemption and an injunction, -or that the defendant *might be deemed to have elected to take the premises in satisfaction of his demand, and might be for ever restrained from proceeding against the complainant. Lord Eldon observed, that no ease had been produced previous to 1786, in which the mortgagee, after foreclosure, had brought the estate to a sale, and afterwards brought an action for the money; and he said that Hr. Haddock, one of the counsel for the defendant in the .ease of Toóke D. Hartley, who knew the practice of the court well, felt great difficulty in contending broadly that the mortgagee might sell the .estate after foreclosure, and then proceed upon the bond» He thought that the case of Tooke v. Hartley did not decide that point; for the sale there .was to the trustee of the mortgagee, and the estate continuing in his possession, might on .a redemption, be reconveyed to the mortga gor; which, in case of sale to a stranger, could not be done. But he observes, that he understood Lord Thur-low’s opinion to -have been, that whether the estate Was sold to a stranger, or remain in the .hands of the mortgagor, there was no distinction, but an action might be brought for the difference; and hé said that the opinion of Lord Thurlow, .and the circumstance that the particular case had never been decided, made it proper to grant the injunction. This case afterwards came on to be heard before Lord Erskine in 1806, (13 Vesey,) 197, when it was contended on the one side that the effect of putting the bond suit in was to revive the right of redemption; and that tire mortgagee having sold the estate, must either get it back, so that the mortgagor might redeem, or must be considered as having elected to take the estate in satisfaction of the debt; and Oh the other side, it was conceded that the action upon the bond so far opened the decree of foreclosure, that the estate must be brought into the account; but it was insisted that if the pledge was not sufficient to pay the debt, the creditor might resort to his other securities. The chancellor, from the importance of the subject, and Lord Thurlow’s opinion, at first deferred his decision, stating, however, that he inclined to the opinion that the *foreelosure was opened by the action ■; and he afterwards declared that he continued of the opinion he had expressed, and was confirmed in it by an opinion of Lord Redesdale ; and he observed that if there was any possibility that the mortgagor could get the estate back again, he'ought to have a time allowed him for that purpose; but as that could not be done, he thought the best decree he could make would be to restrain the further prosecution of the suit at law, and he made the injunction perpetual. But the chancellor was evidently dissatisfied with the decision he found himself bound to make; he felt the weight of Lord Chancellor Thurlow’s opinion in favor of the mortgagee, and the force "of the consideration that the transaction was a loan, and the mortgage, by the law of the court, .a collateral security merely for the payment of the money; and that the principles of equity, as between the contracting parties, required that the pledge should be converted, by sale, into money, to satisfy the debt. But the sale made by the mortgagee himself, after he had obtained the decree of foreclosure, without the direction of the court or the assent of the mortgagor, either express or implied, for its sanction, could not, he thought, be regarded as a sale of the pledge, for the account of the mortgagor : and it followed as a necessary consequence, that the subsequent action at law must be held to revive the right to redeem the estate, but which redemption could not be permitted, as the title had become vested in the purchaser under the sale. The chancellor was therefore compelled to enjoin the action at law, as the' best equity in his power to administer; but he .intimated that the decree of foreclosure was the cause of the embarrassment on the subject, and expressed a strong opinion that the court had not acted up to its own principle in decreeing a foreclosure, instead of a sale; and, as has been before observed, he referred with approbation to the practice in Ireland, as showing the practical operation of the decree of sale, in settling the rights of the parties. From this exposition of the case, it will be seen, that so far from discountenancing judicial sales, it strongly recommends them, as a suitable '^standard of the value of the pledge or estate in mortgage ; and that the opinion of the chancellor was, that, in the case of a sale, the mortgagor would be entitled to the Surplus, or liable to make up the deficiency, according to the result. But the case is an authority against the competency of a sale, by'the mortgagee himself, to ascertain the value of the estate, as between him and the mortgagor.; and so far it seems to conflict with the opinion of Lord Thurlow on the point, as represented by Dickens. This case, it is true, differs from that in some of its features. In that case, notice was given to the mortgagor of the intention to sell, but the sale was made to a trustee for the mortgagee, so that no change was effected in the ownership or possession-of the premises by the sale; but in this case, the sale was without notice, but the estate was sold to a stranger. This distinction was noticed in' argument; and it was urged, that the mortgagee, if entitled to sell, was at least bound to give notice to the mortgagor of his intention, and must state that he means to sell as trustee, and put it out of his power to take the surplus. The court advert to the propriety of the previous acknowledgment of the mortgagor of his acting as a trustee, but lay no stress upon the point. The sale appears to have been wholly disregarded as the standard of value; and the court in determining that the subsequent action at law was a waiver of the decree of foreclosure, seem to have intended to place the decision on the broad ground of the incompetency of the mortgagee, after foreclosure, to treat the estate as a trust, dispose of it by a voluntary sale for account of the mortgagor, and make him answerable for the deficiency. And the objections to the right of the mortgagee to sell without a decree, are certainly entitled to great consideration ; for the power it gives him to consider the property as a pledge, or as an absolute estate of his own, at his option, if unlimited, would be incompatible with the just • rights of the mortgagor. The mortgagee, in the exercise of such a power, must at least be required to determine, *before he puts up the estate to sale, whether he will consider it as a pledge or not; and perhaps must, upon his entry under the foreclosure, make his election to take the estate as absolute owner, or as trustee for sale on account of the mortgagor; and he must give timely notice of his ' intention to sell, and that he will sell as trustee, and account for the surplus. These requisties would seem indispensable to guard against abuse ; but even with these qualifications, the right of the mortgagee to sell is not free from objection, and may justly be regarded as of questionable propriety. These views of the subject, further illustrate the superior advantages of a decree for sale ; as the court, in the exercise of that jurisdiction, may, at the instance of either party, prescribe such terms and give such directions as equity may appear to require, and may take care that the sale be so conducted as to produce the best and most beneficial result. But it was said, that admitting the power of the court to direct a sale of the estate; yet, to make the sale effectual there should first be a decree of foreclosure to extinguish the equity of redemption. And it is suggested, that the former practice of ■ this court was to enter two separate decrees, the first to foreclose the right to redeem, and the second for the sale of the mortgaged premises; or that, if there was but one decree, it was made to contain, first, a formal adjudication that the equity of redemption be foreclosed, and secondly, an order that the mortgaged premises be sold to satisfy the debt. But these forms of decrees, supposing them once to have been in use, both assume the power of the court to decree a sale. The decree of foreclosure which accompanies or precedes the decree of sale, is obviously matter not of substance, but of form; the purpose of the bill and the essence of the decree, is the sale, if the mortgagor is entitled to a foreclosure and sale, the formal decree of foreclosure can be of no possible use, The decree of foreclosure is necessarily included in the decree of sale; for the sale and conveyance of the estate to a purchaser under the decree-of the court, *rnust extinguish the right of the mortgagor to redeem it, If, then, the court had the power to decree a sale, it could not be necessary for the exercise of that power, first to decree a foreclosure, and then a sale. That form was, in effect, circuitously a decree for the sale' "of the estate; and it surely was no departure from principle, to dispense with the formal decree of foreclosure, and decree the sale in the. first instance. The latter course, in its result, reaches the same point, and effects the same remedy as the former; the application of the estate, to the extent of its value, to the satisfaction of the debt, with liberty to the creditor to resort to his other securities for the deficiency; and the right of the mortgagor, as owner of the estate, to the surplus, if it sells for more than the amount for which it was pledged. A judicial sale of the estate under the decree of the court, then if the court has the power to make the decree, whether it be in form of a decree of sale preceded by a formal decree of foreclosure, or in the form of a decree for sale without a formal decree of foreclosure, effectually bars the right of the mortgagor to redeem; and the purchaser will hold it, under the title he acquires to it by. virtue of the sale, and the conveyance he receives from the master, free and discharged from the equity of redemption. The purchase money then stands in the place of the estate, and will be applicable as that "Was, first to the satisfaction of the debt to the mortgagee, and the overplus and residue, if any, to. the use of the mortgagor; and if the produce proves insufficient to satisfy the debt, he will remain personally liable for the deficiency. But the authority of this court to decree the sale of mortgaged premises for the satisfaction of the debt, which thus has the foundation in the principles of equity applicable to the contract of leader and borrower, and the general jurisdiction of the court, is moreover recognized and sano» tioned by the legislature. The eleventh section of the act concerning the court of chancery, (1 Revised Laws, 486,) declares that all sales of mortgaged premises under any decree of the court of chancery, shall be * made, and deeds executed for the same, by one of the masters of the court; and that such deeds shall be as valid as if the same had been executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and their heirs respectively, both in law and equity. The twelfth section provides for the case of decrees for sale of mortgaged premises, where a penalty has become forfeited by reason of the nonpayment of interest only, or of a portion Or instalment of the principal, on the mortgage. These statutory provisions, in giving efficacy to sale by masters, by necessary implication, sanction the decrees tor sale. The legislature, by regulating the exercise of the power of decreeing sales, admit the jurisdiction of the court to make the decree, and would impliedly confer it if it did not exist before. But it is objected, that these statutory provisions relate exclusively to sales under the act relative to proceedings on mortgages against absent and absconding mortgagors ; and that express power is conferred by those acts upon this court, to decree a sale in such cases, The answer to the objection is found in the statute itself. In the first place, the provisions are general, and, in their terms, embrace all sales of mortgaged premises under any decree of the court of chancery in any case whatsoever. The act was passed in 1813, and it sanctions the practice which then prevailed in the court, and the sales which were made under it. But in the next place, the act contains two subsequent sections making special provision for the particular case of absent and concealed mortgagors. By the twenty-first section of the act, is provided, that whenever proceeding shall be had in the court of chancery against any absent or concealed defendant, to the end to procure a foreclosure Or satisfaction of any mortgage, it shall be lawful for the court to decree a sale of the mortgaged premises; and by the twenty-second section, it is declared that the two previous sections of the act, relative to sales of mortgaged premises, shall apply to all sales under the proceeding twenty-first section of the act. The reference in the twenty second-section to the thirteenth section of the act, is obviously in error; for the thirteenth *section has no particular connection with the subject of sales or mortgages, but relates to other matters. The reference was doubtless intended to be to the eleventh and twelfth sections of the act, which apply expressly to sales of mortgaged premises, and are the only sections m the act which can satisfy the obvious intent of the reference contained in the twenty-second section. It is by the eleventh section alone, that the master is authorised to make sales and execute deeds; that authority was unquestionably intended to -be extended by the twenty-second to sales arising under the twenty-first section of the act, and the twenty-second section must therefore have been intended to refer to the eleventh and twelfth sections, and not to the twelfth and thirteenth sections. A similar error occurs in the twent/-third section of the act, which refers to the twenty-second section, when the twenty-first section must be intended, or the .whole of the twenty-third section which contains the reference is senseless and nugatory. It is apparent, then, that the provisions of this statute, relative to proceedings against absent and concealed mortgagors, and for sales in that particular class of cases, are distinct and separate from the provisions it contains for sales of mortgaged premises generally. Can it be presumed that the legislature intended to make a double provision for the same object ? If the only purpose of the act was to authorise and regulate sales in the cases of absent and concealed mortgagors, the frame of its provisions would have been adapted to that end. But the legislature applied the twenty-first section of the act to the particular case of absent and concealed mortgagors, and inserted in it provisions that are not applicable to other cases on mort gages. The eleventh section is clearly intended to apply to all sales of mortgaged premises under the decree of the court; and the purpose of the twenty-second section, is to extend the regulations of the general system under the eleventh and twelfth sections, to the particular class of cases comprised in the twenty-first section. I am therefore of opinion that the eleventh and twelfth sections of this act are not to be confined to proceedings against absent and *concealed mortgagors, but that they are general in their operation, and extend to and sanction all sales of mortgaged premises under any decree of the court. It is admitted that these two sections of the present act were parts of the act of 1801, concerning the court of chancery, and the proceedings therein, and were adopted by the revisors in 1813; but the history of the origin of those sections of the present act,' discloses no ground for varying the construction which their terms require. One of the objects of the eleventh section, and which formed the thirteenth section of the act of 1801, was to authorize a master to make sales and execute deeds. The court already possessed the power to decree the sale; but anterior to that statutory provision on the subject, there was no officer who was authorised to give conveyances, and the course was to direct all proper parties to join in the deeds to the purchasers. The inconveniences of that system were removed by the statute provisions, conferring on. the master the power to make the sales, and execute deeds. But provisions had been made by statute, long before the act of 1801, and were then in force, for authorizing and regulating proceedings in equity against absent and absconding or concealed mortgagors ; a statute was in force on the subject under the colonial government, and on the 7th of March, 1785, an act was passed by the legislature of the state, whereby the court of chancery was authorized to decree the sale of mortgaged premises, in suits against mortgagors who were withdrawn from the state, or could not on due inquiry, be found therein, to be served with process, and who neglected to appear, and suffered the plaintiff’s bill to be taken pro confesso against them, according to the directions and provisions in the act, for that purpose contained, and by which act the sale was to be made of the premises decreed to be sold, by the sheriff of the county wherein the lands were situated, under and by virtue of a writ issued by the court to him, commanding him to make sale of the same, and deeds were to be executed for the same, by the sheriff, to the purchaser. This act was amended on the 13th day of March, 1787, and continued in force, as amended, until the *2d of April, 1801, when it was re-enacted, under the title of “ An act for making process in courts of equity effectual against mortgagors, who abscond or refuse to appear. It was in force as a separate and distinct act, at the time of the passing of the act of the 3d of April, 1801, concerning the court of chancery and the proceedings therein, which contained the section giving the general authority to masters to make sales and execute deeds under the decrees of the court. These two acts were separately adopted, and passed cotemporaneously, by the legislature in 1801, and formed part of the revised laws of that period; and I apprehend that the 13th section of the act of 1801, concerning the court of chancery and the proceedings therein was understood to be a general regulation, applying to all sales of mortgaged premises, under the decrees of the court, and not a partial provision auxiliary to the particular jurisdiction of equity, in cases of absent and concealed mortgagors. So general and so strong was the impression that these powers, thus confer red oil masters, were not intended to be confined to sales authorized by the act for making process in the courts of equity effectual against mortgagors who abscond or refuse to appear, that doubts arose whether they could be extended or applied at all to sales made under that act, and whether that sales authorised by that act were not, as before, to be made by the sheriffs of the counties, according to the pro visions of the act itself. In practice, however, sales were made, and deeds executed by masters, in these as well as in other cases; but the doubt entertained of the validity of ■such sales was so serious that the attention of the legislature was drawn to the subject; and in an act passed the 7th of April, 1806, (4th vol. Laws of N. Y., Webster’s and Skinner’s ed. 615,) after reciting that doubts had arisen upon the construction of the several sections therein men tioned, of the acts in question, it was provided that all sales of mortgaged premises, made under decrees in the court of chancery, in pursuance of the act for making process in courts of equity effectual against mortgagors who abscond or refuse to appear, should be made in the manner prescribed by the act concerning the court of chancery and the proceedings therein, and that the monies arising *from such sales should be applied in the manner directed by the 13th and 14th sections of the last mentioned act; and all sales of mortgaged premises, made under decrees of the court, in the mode prescribed by the last mentioned act, were confirmed. If the power conferred on masters, to make sales and execute deeds of mortgaged premises under the decrees of the court, was intended to apply to sales under decrees against absent and concealed mortgagors solely, how could the doubt thus noticed by the legislature have arisen ? or how could a legislative provision have been deemed necessary or expedient to remove it ? I see no sufficient cause for limiting the powers of the masters to sales under the act relative to proceedings against absent and concealed mortgagors. And there is ground for supposing that those powers were intended and understood to be general, and to apply to all sales of mortgaged premises, under the general jurisdiction of the court, or any particular act of the legislature. But whatever the true construction of the former act may be, the act concerning the court of chancery, passed in 1813, and now in force, appears to me to put the question at rest. Under that act this court impliedly has the general power, (which, by its general jurisdiction, it also possesses,) to decree the sale of mortgaged premises, and the master is authorised to make the sales and execute deeds, in fulfilment of the decree. In the case before me, the bill in the original suit upon the mortgage, was taken fro confesso against the mortgagor, and a decree was thereupon made, on the prayer of the mortgagee, for the sale of the mortgaged premises. A sale has been made of the premises under the decree. That decree is still in force. It is admitted that the sale was. regular in point of form, and its fairness is not impeached. The proceeds were not sufficient to satisfy the debt; and the subsequent proceedings at law were for the deficiency, and upon these facts my opinion is that the sale was valid and effectual in law, and that the master’s deed is an entire bar against the complainant’s suit; and that the subsequent proceeding at law, upon the judgment, to obtain the deficiency *which the sale failed to produce; did not open the decree. The demurrer must therefore be allowed. The appellant, lit person, insisted that, by the common law, strict foreclosure on a mortgage in fee, was the only process to bar the equity of redemption ; and that this common law is the law of the state. That foreclosure and sale ate of recent practice, and repugnant to the law of the state; and that a sale solely, as in this cáse, is neither sustained by law nor practice. He said, if a sale can constitute a foreclosure, the common law maxim, that if the mortgagee takes the land, the mortgagor takes the money, extinguishes the debt.' Neither the inherent powers of a court Of chancery, or any law of this state, can give validity .to the sale in this Case. C. G. Troup & J. V. Henry, Contra, insisted that the court of chancery has poivér not only tinder thé general authority Of the court, but Under statutes of this state, to decree a sale Of real estate mortgaged. That a master’s sale and conveyance under such á decree iá ás binding and conclusive as á salé and conveyance from the mortgagor and mortgagee. The equity of redemption is not left open by there not having been a decree of express foreclosure. Nor did the proceeding by execution, to obtain satisfaction of the balance due on the bond, after crediting the afnouUt of the sale under the mortgage, open the equity of redemption. (b.) •This case was argued in July, 1827. This cause was decided October 17th, 1827. Waring v. Smyth, 2 Barb. Ch. R. 119. Jackson v. Willard, 4 John. 42. Runyan v. Mersereau, 11 id. 534. . The King v. St. Michaels, Doug. 630. The King v. Edington, 1 East, 288. Litt. Sec. 332. In New York the Court of Chanceiy ia abolished, and equity jurisdiction is vested in Courts of Law. :SeeiConstitution of 1846. Ant. 13, Sec. .13, 14. .[2] Master of the Rolls, in Palk v. Clenton, 12 Ves. 59. Calkins v. Munsell, 2 Root, 333. Bell v. The Mayor of New York, 10 Page, 49. Per Nelson, J., in Patchen v. Pierce, 12 Wen. 61. See also Am. Ch. Dig. by Waterman, tit. mortgage. Rafferty v. King, 1 Keen, 617. Slee v. The President &c., of the Manhattan Co. 1 Page, 48. Hughs v. Edwards, 9 Wheat. 489. Elmandorf v. Taylor, 10 id. 452. Dexter v. Arnold, 1 Sum. 117, S. C. 3 id. 155 Varick v. Edwards, 1 Hoff. 390. But length of time is no bar, where the mortgagee treats the mortgagor as such, or where, it was agreed, he might enter, and keep possession, until paid out of the premises. Marks v. Pill, 1 John, Ch. 594: or where the purchaser admitted the existence of the lien, and promised to discharge the mortgage. Park v. Peck, 1 Page, 474. It may be rebutted by a solemn recital, and acknowledgment of the mortgage as such, in deeds &c. to third persons. Dexter v. Arnold, 3 Sumn. 118. There may be cases, in which, fiom their peculiar circumstances, a redemption will be allowed even after the expiration of twenty years, 3 Sumn. 155, 6. See also 1 Cowon & Hill’s Notes, 510, 512. 2 Bl. Com., 158, 9. 2 Cru. Dig., 77-81. 4 Kent, †181. 4 Kent, †181. See Culver v. Sisson, 3 Comst., 264. Elder v. Rouse, 15 Wen. 220,221. Thomas v. Brown, 9 Page, 370. But see McCoun, V. C., in Engle v. Underhill, 3 Edw. 249. Note 1 post 154. In New York, the Statue noW provides for a decree over against the mortgagor, as a substitute for a judgment at law, and takes away the remedy at law on the bond, while a bill of foreclosure and sale of the mortgaged premises is pending, 1 unless authorized by the Court of Chancery.’ See Ho Conn, Vice Chancellor, in Engle v. Underhill, 3 Edw. 249. It is said that the practice of foreclosing by sale prevails in all the states of the TTnion except three or four. Mussina v. Bartlett, 8, Port 288. 2 R. S. of New York, 4th ed. 356, §60. Nelson v. Carrington, 4 Munf. 332. Downing v. Palmateer, 1 Monroe, 66. Humes v. Shelby, 1 Ten. 79 Rodgers v. Jones, 1 M’Cord, Ch. 221. Paunell v. Danners’ B’k 7 Harr & G. 202. Harr. & G. 94. See Jackson v. Willard, 4 John. 42. The King v. St. Michaels, 1 Doug. 632. Casborne v. Scarfe, 1 Atk. 606. Runyan v. Mersereau, 11 John, 534. Dougherty v. McClogan, 6 Gill & J. 275. Martin v. Mowlin, 2 Burr. 978. Thornbourgh v. Baker, 1 Chanc. Cas. 283. S. C. Swanst. 628. See also Williams on Exec. †575. So the interest of a tenant, under a demise from a mortgagor, mads after the execution of the mortgage, is extinguished by foreclosure and sale. Seinors v. Saltus, 3 Denio, 214. l] Although there has been a variety of judicial dicta, the better opinion seems to be, that after a foreclosure, with or without a subsequent sale, the mortgagee may sue at law for the deficiency; see 4 Kent, †183 See also Perry v. Baker, 8 Vesey 527. Hatch v. White, 2 Gallis. 152. Omaly v. Swan, 3 Mason, 474. Cullum v. Emanuel, 1 Alab. 23. [MAJORITY — Woodworth, J. Savage, Ch. J.] Woodworth, J. declined giving an opinion, on the ground that he had purchased lands, the title to which depended on decrees like the one in question* *Sutherland, J. because he was related to the appellant and Savage, Ch. J. because he had expressed an opinion on one of the questions raised, while sitting for the chancellor in a cause wherein the appellant was a party. (Vid. 1 Hopk. 104.) *But several of the senators declaring they had no doubt upon the case, an early day was assigned for its decision, when the opinion of this court was delivered by "Oliver, Senator. It has been well observed, that few parts of the law lead to the discussion of more extensive or useful learning than the law of mortgages. The doctrine in relation to them has been gradually altered from their first institution till the present period, till they have now become one of the most convenient securities in use. The leading principles in relation to them are generally well understood by community ; and any innovation upon *what is considered their practical effect and consequences might create serious and permanent injury. Anciently there was no right of redemption in the mortgagor, after forfeiture, and the British parliament in the fourteenth year of Richard the second, refused to admit it. (1, Chan.„Ca. 219. Butler’s Notes on Coke upon Littleton, (205 a) note Í.) Equity, however, soon interposed, and permitted the mortgagor to redeem after forfeiture, by paying the principal, interest and expenses of the mortgagee. This led to the process of foreclosure, and subsequently to a sale of the premises. Formerly it was not usual to insert a power of sale in mortgages; but the insertion of this power in them is of ancient date, and is recognized by our act concerning mortgages in its sixth and seventh* sections. In the case now under consideration, it is contended that the practice of foreclosure and sale by the court of chancery, is of recent date; but this cannot be so; for Sir William Blackstone speaks of them as in use previous to the time when he wrote his Commentaries, (2 Bl. Com. 159,) which was upwards of sixty years ago. In this state sales of mortgaged premises by the court of chancery, are believed to be coeval with the organization of that court, under the constitution of 1777. The amount of property now held under them is incalculably great, and to question their validity at this late day, cannot be tolerated. The sale by a master under a decree of the court, .is, it is believed, tantamount to a foreclosure, and the mortgagor can no more redeem in one case than the other. This seems to follow as a necessary consequence, if the court of chancery has power to order a sale. This power of the court, independent of its long exercise, seems to be recognized by the eleventh section of the act concerning the court of chancery, (1 R. L. 48.) By this section, the deed of the master is made-an entire bar against the mortgagor and mortgagee, and their heirs respectively. ♦The sale then, by the master, and the deed pursuant to it, are an effectual foreclosure of all equity of redemption. The purchase of part of the premises by the mortgagee, cannot vary the case. The tenth section of the act concerning mortgages, gives a mortgagee a right to become a purchaser ; and provides that no sale shall be questioned on this account, either in law or equity. The only remaining question is, whether the proceeding on the judgment upon the bond, after the sale of the mortgaged premises, opened the foreclosure, and let in the right of redemption of the mortgagee 1 The cases of Blackwood v. Blithway, (1 Eq. Ca. Ah. 317,) Perry v. Barker, (8 Yes. Jun. 527,) and the same case, (13 Yes. 197,) would seem, if they are good authorities, to establish the affirmative of this question, at the common law; but the learned and eloquent jurist (Erskine) who pronounced the opinion in the book last cited, appears himself to be dissatisfied with it. He says that he was informed by the chancellor of Ireland, (Redesdale,) that the practice there was to take a decree of sale instead of foreclosure, and if the premises, on the- sale, did not satisfy the mortgage, a suit might be brought on the bond to recover the balance without opening the decree. This practice has long prevailed in Massachusetts, (3 Mass. Rep. 562,) and has been sanctioned by Story, J., in Hatch v. White, (2 Gallison, 152.) In this opinion of ) A reference to Lansing v. The Albany Insurance Company, (1 Hopk. Ch. Rep. 102,) and The Globe Insurance Company v. Lansing, (5 Cowen, 380,) with the following cases, a noté of which Was furnished to the court bf errors by the learned and venerable appellant, himself the late chancellor of this state, will so fully exhibit the history and grounds of) and the hooks relating to the controversy now put at rest by the principal case, that I have deemed it unnecessary to state more which came from counsel than the points made hy them. mCHANCERY.|S r 824_ Egberts v. Lansing, j ■ ? Sanders Lansing mortgaged in fee to the complainant ,a lot in Water street, in the city of Albany, for securing the payment of $1000, to the equity of redemption of which the defendant, John Lansing, junior, had become entitled. A bill to foreclose had been filed; a reference to a master obtained; and upon the coming in of his report, Í1 Y. ITechtert moved for a confirmation, and an order for sate of the mortgaged premises. The defendant J. Lansing, objected. There is no law in this state to warrant a judicial sale on a mortgage in fee, where all the parties appear. It is a process of recent introduction. The rule is to foreclose : that is, to adjudge the mortgagor entirely hatred, which devolves his interest upon the mortgagee, by merging it into the mortgagor’s estate at law. So has always been the practice, till about the year 1817. The new practice is repugnant to the -common law, S.indford, Chancellor. I found the practice so -; it has obtained for some time, and I will adhere to it. Order for sale. m CHANCERY. L.vnsiNg 0. Goblet, {the principal case.) After stating the ease substantially as Stated in thé text, fhieé points Were made by the plaintiff: 1. That a mortgagee, before foreclosure, has merely a chattel interest in the mortgaged estate; 2. That the sale of that chattel interest cannot affect the equity Of re demption; 3. That if the order for sale is deemed a foreclosure, it is a satisfaction of the mortgage -debt. Plaintiff in petsott. That tile interest of the mortgagee before foreclosure is a Chattel, has been long held, as appears from numerous authorities. (1 Ch. Gas. 283. 2 id. 263. Br. Rep. 200. Dough 810. 2 Yem. 367. Prec. in Ch. 11. 2 Tern. 1S3. Sir W. Bladkstone’s Rep. 145. Salk. 605.) And the same doctrine was recognized by'Chancellor Kent, in Wilson «. King,e {1 John. Ch. Rep, 145. 7 John. Ch, Rep. 25,) laying if eb'tim broadly, that a mortgagee ean do no act to affect the mortgagor’s right before foreclosure ■ and accordingly, whenever he speaks of sales on mortgages, he always coup» les them as a foreclosure and sale. E so, the sale in this case only passed a chattel. The second point; The common law text is, if the mortgagor takes the land, the mortgagee takes the money: the one is a full equivalent for the other. (Cro. Car. 331. 2 Keb. 387. Co. Lit. 332. 1 Ch. Ca. 244. 2 Atk. 103. 8 Co. 116.) On this point all unite; and every modem systematic writer on the subject, Blackstone, Bow ell and Cruise, in deducing the doctrine of mortgages, express not the least hesitation on the subject as to the correctness of this text. As to the third point, there is no act of the legislature of this state on the subject of judicial sales, excepting only as to absentee mortgagors. There is no decree of foreclosure in those cases; and the legislature seem to have had this distinction in their eye, by the provision that the master’s deed shall have like effect as if executed by the mortgagor and mortgagee. The English court of chancery held this an open question for a long series of years. The departure from the common law, and the return to it are to be traced through Mosely, 19 Eq. Cas. Ah. 317 ; Yiner’s Ab. title Mortgages, F. p. 24; 2 Dick. 551, 785, 787; 2 Bro. Ch. Rep. 125,126; 1 Yern. • 257; 2 Atk. 103; 18 Yes. 83, 197; and 1 Yes. & Bea. 223; the last two cases in 1806 and 1813. The common law of this state, from its constitutional limit, is paramount to the most ancient of these cases. On the case of Mondey v. Mondey, on a supposed pre-existing practice in this court, and on the construction that a bill of foreclosure was a proceeding in rem, and so conferred jurisdiction over the mortgaged premises, and every person or thing connected with them, the doctrine of judicial sales was bottomed by Chancellor Kent—all manifestly erroneous. This was adjudged in Kershaw v. Thompson, (3 John. Ch. Rep. 387,) in 1818. That sales were not in the course of the common law, has been shown. On a search recently directed by Chancellor Sandford, it appeared that a strict foreclosure was in the colonial course from the origin of chancery in the colony till the revolution. • The origin of the state practice as to judicial sales, has been recognized in the eases adjudged in this state as receiving its start from the adjudication in Kershaw v. Thompson. In that case, that of Yates v. Hinkly, was cited as a decision of Lord Hardwicke, (3 Atk. 360,) as supporting the doctrine that a bill of foreclosure was a proceeding in rem. That case arose on a bill to redeem, which was in effect a proceeding in rem. but it became so by the Stat. Geo. 2, ch. 7, and. the decree was in strict conformity to that statute. Henry, for defendant, stated two points: . 1. That there not being a decree of foreclosure where a sale was directed, does not leave the equity of redemption open 3 2. That the prosecution for satisfaction by judgment on the bond accompanying the mortgage, and the execution, did not open the equity of redemption. The master’s sale gave effect to the decree as effectually as if made by the mortgagor and mortgagee. Cases of strict foreclosure are of rare occurrence. He had only one during his practice. Sale includes foreclosure. (2 Powell onMort. 1039,1040, 1059, 1060.) Personal estate was sold to supply deficiency on mortgage. It is the course of-the court to exercise power of sale. Debt must be satisfied. (2 John. Rep. 490. Delabigare v. Rush, 3 John. Rep, 169. 13 Yes. 84. 1 Hopk. 231. id. 103. Lansing v. Albany Insurance Company.) The execution is only for deficiency. Judgment and sale are conclusive. To open the sale, is to restore the pledgej hut this sold to strangers. Statute expressly says it shall be valid. 2 Powell on Mort. 1075, Ch. Cas. 136,2 Dick. 788, cases of judicial sales. 13 Yes. 203 as to sales to third persons 2 G^-ll. 250 ; Toon u. White, 2 Dick, 551; 3 John. Ch. Rep. 227, 380 5 express as to sales. Distinction as to chattel interest, not tenable. Debt is principal, securities merely incidental. A mortgagee may sell his right, but a decree indispensable. Mortgagee is trustee—may sell and pay himself. Worth may be questionable, and value can only be ascertained in the market. If mortgagee permits sale, it is Ms own fault. The statute confirms master’s sale—sheriff’s required confirmation. (1 K. & R. L. N. Y. 443, § 13.) The mortgagee has made his election to have Ms debt. There have been no appeals. Plaintiff, in reply. The English doctrine has been uniform in all its changes, in the admission of the common law rule. The opening admits it was otherwise shut. The plaintiff contends not for opening it, but that it never has been closed. If the sale was void, nothing passed, and no rights are deducible from it. TMs is not a case "in which mortgagee can be trustee— there is notMng to trust him with 3 the parties are adverse to each other, and have been so throughout. Practice is merely the habit and rules of court, to give laws construction and effect, not to impugn or alter them. August Term, 1826. Jones, Chancellor, disavowed giving anyformal opinion; barely observing, that the uniform practice, wMch his recollection supported, was according to the proceedings of the defendant; that he considered this case as decided both in chancery and the supreme court; and until those opinions were reversed, he should deem them to be the law of the land. Afterwards, on a rehearing, the chancellor assigned his reasons at large as in the principal case. [CONCURRENCE — Story, J., Kent,] Story, J., Kent, Ch. seems to concur. (3 John. Ch.. Rep 331.) It would seem to be the only equitable rule that can be adopted; and one which leads to less injustice.than any. other. ' The mortgaged premise can never be sold without giving public notice of the time of sale; and the court of chancery will do its utmost to secure a fair and advantageous sale. Thus, in case of any calamity, such as hostile invasion or extreme sickness prevailing in the place of sale at the time, the court will interfere and postpone it, (1 John. Ch. Rep. 310;) so that it is impossible that mortgaged premises can be sold without giving the mortgagor a fair chance to procure bidders. The least fraud or unfairness-in the sale will vitiate it. *If, then, the mortgagee fails to collect the whole of his loan, interest and cost on the sale, why should he be compelled to lose the residue ? I think, therefore, the inherent powers of a court of equity are sufficient to ' sustain this proceeding. But if not; the answer upon the statute is sufficient. If our statute makes the master’s deed an effectual bar to the equity of redemption, it would seem to be an absurdity, that the mortgagee, by bringing a suit, could render it ineffectual. I am, therefore, for affirming the decree of the court below. Decree affirmed.