
    William H. Byron vs. John H. May.
    Though a mortgage contains a provision for foreclosure by advqn? tisemenl, yet a Court of Chancery is not thereby precluded irons, entertaining jurisdiction in a suit by bill, in that Court. In many cases a foreclosure by advertisement would afford but a m'eagre and inadequate remedy.
    The Statute of this State does not preclude a party mortgagee from foreclosure by bill in Chancery-r-nor does it restrict him to a fore-, . ^losure by. advertisement — on the contrary, that power is given by Statute to the Court of Chancery.
    Courts of Equity have inherent original jurisdiction of mortgage» cases, springing from the enlightened principles of natural justice.
    At common law a mortgage on real estate amounted to an absolute conveyance of the land, subject to bo defeated, only by the payment of the debt, according to the stipulation contained therein. To mitigate the severity of this rule, Courts of Chancery long since, interposed; and established, the right of .redemption, from the forfeiture of the land, which otherwise would have been certain to, '^ave occurred afi commpn law, unless, prompt payment had been made in accordance with the condition? apcf stipulations of the mortgage.
    The Bill; filed in this cause is for the foreclosure of - % Mortgage.
    The defendant filed his plea setting up that in the mortgage mentioned in the Bill, among other things, it was.' covenanted and agreed that in case of the non-payment of the, sum of money mentioned in the mortgage, or any part thereof, at the time, or times, therein limited for the; payment thereof, 01; in case of the non-payment of the taxes that might be, assessed on the mortgaged premises, then» apd in either case the whole pf the sum mentioned in the mortgage would be deemed payable, áriá that it should or might be lawful for the 'Complainant, his heirs-, executors, administrators, or assigns, and the defendant did thereby covenant and agree, and by the said mortgage did empower and authorize 'the complainant, his heirs, executors, administrators and "assigns to 'giant, bargain, sell, release and convey the premises in the mortgage and the bill described, with the appurténances, at public auction or vendue, and on such sale to make and execute to the purchaser or purchasers, his heirs or their heirs and assigns forever, good, ample and sufficient deeds "of conveyance in the law, pui’suant tb the statute in such case made and provided, and that therefore this court hag not jurisdiction of the matters alleged in the bill, because the complainant has a plain, adequate-, and complete remedy at law, under, and by force of the statute in such 'case made and provided. Therefore the defendant pleads the matter aforesaid, arid prays the judgment of the Court, &c.
    The cause afterwards came on to be tried béfore the Circuit Court for the County of Rock, and the plea of the said defendant was overruled. The complainant’s bill was taken as confessed by the defendant, and the usual decree was made and entered.
    The defendant afterwards duly filed his bond-; and appealed to this court.
    
      Jl. Hyatt Smith, 'counsel for appellant,
    made the following points and argued therefrom:
    The Circuit Court derives its power to act as a Court ‘of Chancery solely from the Statute and has no jurisdiction of any case in which a plain, adequate and complete ¡remedy-cap be had at law, while Courts of Chancery ac-¡ cording to. general equity principles hpve jurisdiction to, enforce retpedies which cannoJ be enforced in Courts of Common law. Revised Statutes, chap. $34 sec. 1 page 413.^
    
      Story’s Commentaries op. Equity, vol1 sec. 28 page 27.
    The Statute furnishes, a plain, adequate and- complete, remedy in the case of a mortgage containing a power of gale. Revised Statutes, chap. 121, page 619.
    
      J. Jl. Sleeper, for appellee,
    made the following points:
    1 st. The Courts of Equity in this State are not ousted pf their jurisdiction, in cases of mortgage foreclosure, by the Statute, which authorizes proceedings to foreclose by advertisement. R. S., chap. 84, § 1, p. 413; § § 76 to 91. Sailly vs. Elmore, 2 Paige, 497. Charter vs. Stevens, 3: Denio, 33.
    2d. The Statute authorizing foreclosure by advertisement is cumulative, and does not in terms repeal the com-, mon law; at all events, the Statute authorizes the foreclosure of a mortgage, by bill filed in the Circuit Court. R. S., chap. 84, § § 76 to 91.
    3d. The fact that a power of sale is contained in the, mortgage does not compel the mortgagee thus to proceed. He may still pursue his remedy in a Court of Equity. Sailly vs. Elmore and Charter vs. Stevens, supra. Bur-dick vs. McVanner, 2 Denio, 170, Gordon vs. Hobart, 2 Sumner C. C. R., 401. Baker vs. Biddle, 1 Baldwin C. C. R., 405. Little Sf Broion’s U. S, Statutes, vol. 1, p. 82. 3 Peter’s R., 210. and 215.
   By. the Court.

Hubbell, J.

There is but one question in this case — whether, a Court of Chancery can properly entertain.proceedings for the foreclosure of a mortgage, containing the usual power of sale?

The appellant contends that the Statute, providing for a foreclosure by advertisement, furnishes “ a plain, adequate and complete remedy;” and hence, Chancery is ex-■eluded from jurisdiction.

This position cannot be admitted. Equity affords, in most'cases, the best remedy, and in some, the only adequate relief, as in cases of strict foreclosure. The power to decree and compel delivery of the mortgaged premises, and to decree and direct payment, by the mortgagor, of any balance of the mortgage debt which may remain unsatisfied is possessed alone by the Courts of Chancery, and is oftentimes essential to the rights of the mortgagee.

“ It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, os practical and efficient, to the ends of justice and Us prompt administration,, as the remedy in equity” (Boyce’s Exrs. vs. Grundy, 3 Peter’s U. S. Rep. 215.)

This is undoubtedly the sound rule, and applying it to this case, there can be no question but that the remedy at law, is not so perfect as to preclude the jurisdiction of Chancery.

It is a mistake, however, to suppose that the power of the Court in foreclosure suits, is conferred, or restricted, by the first section of chapter 84, of the Statutes, (page 413,) which provides, that “ The Circuit Coiirfs- of the State shall have jurisdiction, in cases properly cognizable by a Court of Chancery, in which a plain, adequate and complete remedy cannot be had at law.” Such power is especially conferred by the subsequent sections, (76 to 01 inclusive,) which prescribe the proceedings “ for the foreclosure or satisfaction of a mortgage,” and authorize the Court “ to decree á sale o'f 'the mortgaged premi--

This grant of power íá blear and specific and is wholly independent of the question, Whether there is “ a plain, adequate and complete remedy, at law.” It is equally independent of the statutory provision, authorizing a salé by advertisement, in pursuance of the power contained in the mortgage. That rerriedy is merely cumulative) and not in conflict with the jurisdiction of equity, also conferred by the statute.

But I wish to place this decision upon higher ground'.' The jurisdiction, in question, is not derived from the Statute. Courts of Equity have inherent original jurisdiction of mortgage cases; springing from the enlightened principles of natural justice.

It must be remembered, that, at common law, a mortgage of real estate was an absolute conveyance of the land, in fee simple, subject to be defeated only by the payment of the mortgage debt, at the time and place specified; and, in case of failure to' pay, the land was lost, or 'dead, to the mortgagor. (Coke Littleton 205a., 2 Black Com. 157; 4 Kent. 131.)

And 'such is the law at this day, with respect to mortgages of personal property, notwithstanding the usual pow'er 'of Bale therein. (Burdick vs. McVannet, 2 Denio, 170.)

To mitigate the extreme severity of this rule, in relation to land, Courts of Chancery early interposed. They proceeded upon the principle of preventing oppression and injustice. And with this object, not only insisted upon the right of redemption, but treated with great jealousy, all contracts made with the mortgagor, to lessen, embarrass, or restrain it. The untrammeled minds of England’s Chancellors first broke through the mists of the' -common law, upon this important branch of jurisprudence. And although Lord Chief Justice Hale, “ complained ■•severely,” of the growth of equities of redemption, the enlightened doctrines of Nottingham, and Hardwick, triumphed over technicalities, and finally extended them-, selves, even to the Courts of Law. Chancellor Kent, upon this subject, speaks with, more than his usual zeal and eloquence. “ In ascending,”- says he, “to the view, of a mortgage in the contemplation of a Court of Equity, we, leave all these technical scruples and difficulties behind.

Not only the original severity of the common law, treating the mortgagor’s interest as resting upon the exact performance of a condition, and holding the forfei-. ture, or the breach of a condition, to be absolute, by non-, payment or tender at the day, is entirely relaxed; but the narrow and precarious character of-the mortgagor, at law, is changed under the more enlarged and liberal juris-., diction of the Courts of Equity..

Their influence has reached the Courts of Law, and the case of mortgages is one of the most splendid instances in the history of our jurisprudence, of the triumph of equitable principles over technical rules, and of the homage, which those principles have received, by their adoption in the. Courts of Law, Without any prophetic anticipation, we may now well say, that “ returning justice lifts aloft her scale.” (4 Kents Comm. 151.)

Impressed with these grateful recollections, we should hesitate before adopting a principle which 'would expel ■Courts of Equity from a field in which they have accomplished so much good and won so much glory. But the proposition of the appellant goes even further, and in effect excludes also, Courts of Law; tying- pp proceedings on foreclosure, to a naked, statutory provision, which in the end, must be found as rigid and technical as the mortgage itself, in the eye of the ancient law. This is the first attempt, I think, by any mortgagor, to sever his con-nexion with a Court, which gave birth to all his rights, and which can alone certainly and effectually protect them. And if it should prove successful, we might expept to see the scale of “.returning justice,” speedily and fatally descending.

The power of sale inserted in the. mortgage, authoriz-, ing its foreclosure by advertisement and public sale, although designed perhaps, to lessen the expens.e and simplify the proceedings, is nevertheless ^ power .-yielded by the mortgagee. It is one of-the numberless contrivances by which, the holders of.-securities ha,ve sought to evade or overthrow the right of redemption. Properly viewed —as a mere cumulative remedy — it may be found convenient in practice; and it neither exclude^ the jurisdiction, nor obviates the utility of a Court of Chancery. The interposition of that Court is still indispensable, on the part of the mortgagor, to protect the, equity of redemption; to extend the time for-, sales; to, open sales improperly made; and to decree a re-conveyance, when the mortgage debt is paid; and on the part of the mortgagee, to restrain waste, and to appoint a receiver qf rents and profits, in case, the property is pot likely to pay the debt and costs.

Had there b.e.en,. ip this State, no special act, conferring the jurisdiction in question, it must have sprung incidentally from the general powers conferred upon the -Circuit Court, by the Constitution; the power to enforce the performance of contracts; to direct the execution of trusts, and to grant relief in cases of fraud and oppression.— These powers are generic and inherent in Courts of Equity. They are inseparable from their existence, and are conferred by the constitution, by the very act of their creation.

This Court would be alike derelict to itself and to the people whose interests it has in charge, not to assert and vindicate this rightful portion of its- jurisdiction. .

In every view of this case, the appeal must be dismissed with costs.  