State journal & flag., 1846-12-25

" conveyance ny deOtoT 10 thlrd per.
son, in tut, for the benefit of his creditor.
and the latter, that of a morgagor; that the
reversonary interest of grantor in de ed
of trust, is wholly unlike the equity OF re-
demptIon of n mortgagor. This asser.
ton the Judge does not prove by argument,
but rests upon paragraph which he CO.
pies from the opn on of The late CHANCELLOR
Buckner Of Mississippi, in the case of Nc.
intyre US. Agricultural Bank ct al. which,
with great confidence, he pronounces un.
answcrable. 1t is as follows:
1.-The interest of grantor in deed of
trust, is not analogous to the interest of a
morlgagor and is not the subject of lien
on execution. Here was an absolute con.
veyance in trust for the payment of debts.
1t bears no analogy TO mortgage. Sec. l,
Pow, on mort 10 note The granior
las but contingent rererSionary interest,"
The trustee holds the land in trust, first for
the payment of the specific debt, and Sc.
sondly for the benefit OF the grantor, if any
thing should be left after the payment of the
debt. See Dunn Us. Dodd, 1 John. cases
100. This is not such trust interest in
the gronior as is the subject of levy and
sale al common law; a Judgment at law
is not lien ipon mere equitable interest
in land. l John. C. Rep. 52-I7 John Rep.
$50. The interest Of the cestue que trust
cannot be sold on an execution at law, un.
les, where the trustee holds the title as a
naked simple trust, and the whole beneficial
interest. is in the ceStue que trust Ontario
Bank Us Root, Page 47S. Bogert Us.
Perry, l John, Oh. 81; IL John. Rep.
$50"
| have extracted The entire paragraph,
although it is only The first branch of it
which will be considered, as the Supreme
Court of Alabama agree with C. Buckner,
and with Judge Crawford, upon the impol-
icy of exposing such eqtable interests to
sale by execution at law. The point of
difference, is whether there is airy analogy
or resemblance between the interest of
grantor of deed OF trust in possession, and
the equity OF redemption of a morgagor.
have stated that Judge Crawford asserts,
but does not attempt 10 prove that there is
no analogy between them. Chancellor B.
cites as authorities in support of this posi-.
ton, note in Pow, on Mort, 10. and Dunn
Us. Dodd, l John. cases 100. The note in
Pow, is entirely 100 long Tor insertion here.
but has not the remotest resemblance to
the principle it Is cited to sustain. 1t mere.
y points out the advantages and disadvan.
tages, OF a mortgage, with or without
power of sale but does not contain word,
which directly or indirectly, indicates dif-
ference as it respects the rights OF creditors,
between the interest Of a grantor in deed
of trust and that of a morigagor. And in.
deed 1t would have been passing strange. if
such decision should have been found in
n note, the object of which was to illustrate
The text, treating of the best means of av0i>
ding the expense and delay OF foreclosure
in Equity. Ia the other case the only
principle decided by the court. was. that an
absolute deed of conveyance, of real estate
upon trust, could not be set aside on the
ground Of usury. The principle it was CT.
ted to support did not, and could not have
arisen in the case. The other authorizes
cited by the Chancellor, are to establish. that
a equitable interest, is not the subject of
levy and sale at common law, a proposition
do not controver. Nor was the decision
Of c. Buckner referred to by the District
Judge for that purpose, but to show that
the Supreme Court OF Alabama IN Williams
and Butler Us. Jones erred, in supposing
the decision in McGregor 81 Darling Us.
Hall, authorized, or rather constrained them
to decide, that the interest of a grantor of
deed Of trust in possession. could be sold
by execution.
In the eye of reason and common sense,
their can be no distinction between equity
of redemption, and the interest of IA grantor
in deed OF trust. Both instruments are
securities made by the debtor to secure tho
payment Of debt; and in both, the debtor
is entitled TO that which remains Of the prop,
ery conveyed whon the debt is paid, and
when the difficulty is surmounted, as it was
in McGregor and Darling Us. Hall, that it
is the sale of an equity. can see no reason
why both should not have been put upon
the same footing. 1t was so considered
by court of high authority, the Supreme
Court in North Carolina in Harrison Us.
Battle, d. E1. R. 537. In that case, one
Hunt had COW, yed all his property which
could be- seized Under execution, to third
person in trust to pay debts, and one of the
questions was, whether the interest Of the
grantor could be sold under execution, in
virtue of statute of North Carolina, which
authorized the sales of trust esiatates.
Chef Justice Henderson said SO far as
regards the land, Hunts interest may be
Id under the second section of the aci;
for we cannot distinguish his right to have
the land again, after the payment of the
debt for which this stood as security, from
an equity of redemption. II has all the
essentials Of tina. right, although 1t wants
some of lis formal parts; it is conveyed to
secure the payment of debt: upon The
payment of the debt, Hunt has a right to
call for the reconveyance. Whilst in his
possession by the consent ofthe creditor he
is not accountable for the profits.
This trust 10 be sure can be closed bya
sale. without the intervention Of a Court Of
Equity. The aid Of The Court to forecloss
the Equity of redemption. is required only
because the law will not trust the creditor
to. be both his agent and that Of the debtor,
whose rights il may be his interest to sac
rifice. This trust is free from that obliga.
ton. because The parties have agreed on
their trustee. We cannot therefore distin
guish this interest from an equity Of re,iemp.