
    Austin v. Burbank.
    In the Court below,
    Timothy Burbank and William Bradley, Petitioners - Mary Austin, James Austin, Thaddeus R. Austin, Mary Ewing, Mehitabel Austin, Oliver L. Phelps, Horace Austin, Roderick Austin, Calvin Austin, Gideon Fairman, and Delight Fairman his wife, and Jonathan Austin, Respondents.
    
    surer of the blcfon ⅞-¾' mand, with abte on tife" 2dofSeptem-k^wa^teM’ that any de-mentwasa forfeiture of An assignment of the mortgage debt, without a conveyance of the legal title to the mortgaged premises, is sufficient to entitle the as-signee to sustain a petition for foreclosure. Where a mortgage deed was given to secure a bond to the trea-the bond ; and that the mortgagee, or his assignee, might sustain a petition for, foreclosure, without shewing a special demand.
    HIS was a petition in chancery against the representa-lives of Seth Austin, deceased, for the foreclosure of their equity of redemption in certain mortgaged premises.
    The petition stated, That on the 28th of March, 1803, Seth Austin, then in full life, since deceased, mortgaged nis farm of land in Suffield to the State of Connecticut ; and by the condition of the mortgage deed, it was provided, ihat said Austin should, without delay, pay the principal and interest of a certain bond by him executed, of that date, for the sum of gi,000, payable to the Treasurer of the State, and his successors in office, on demand, with interest payable on the 2d day of September annually : That the respondents on the 28th of July, 1806, purchased the aforesaid mortgage of the State ; and, at that time, Andrew Kingsbury, Esquire, then Treasurer of the State, transferred and assigned to them said mortgage, by an assignment inusual ^orm indorsed on the bond, and, by a deed of release and quit-claim, in usual form, and duly executed, thereby descri-king and conveying to them the aforesaid farm of land ; which deed of mortgage and release were recorded in the proper office : That by the means aforesaid, the interest of the State in said lands was conveyed to, and vested in, the pe-Uinners. And that no part of the principal and interest of said bond had ever been paid, although often requested and demanded.
    To tliis petition the respondents, confessing the assignment and transfer of the bond to the petitioners, pleaded, ♦h.' the interest arising on the bond, viz. ⅞240 had been p. id to the acceptance of the Treasurer of the State, and the managers of ¡he school-fund ; and the same was, before the assignment of the said bond to the petitioners, indorsed in full therebn, up to the 2d of September, 1805 : That on the 2d of September, 18O6. the respondents tendered the petitioners 40, in satisfaction of the interest due on the bond, which the petitioners have since received : And that before the service of the petition, no demand had ever been made of the principal sum of §4,000.
    To this pica the petitioners demurred ; and the Superior Court adjudged'the same insufficient.
    The respondents then made answer, denying the facts stated in the petition.
    The Superior Court, found all the facts stated in the petition to be trite, except that they did not find, that the title o£ the land was conveyed to the petitioners, by said deed of release from the Treasurer of the State ; and found due on the mortgage §4,122 ; and decreed, that the same and interest should be paid in two years, and on failure, that the respondents should be foreclosed.
    
      Ingersoll, for the plaintiffs in error
    contended, that the judgment ought tobe reversed,
    1. Because no demand was made of the money previous to the commencement of the suit.
    
      -i. Because no legal tille to the mortgaged premises is found in the petitioners ; and an equitable title only is not sufficient.
    
      Bradley, for the defendants in error.
    The object ,of this plea is to ¡show, that the interest annually due upon this bond has been paid ; that the principal has never been demanded ; and that so the .condition of the mortgage deed has not been broken.
    But, it is stated in the petition, and admitted by the plea, that the bond was payable on demand, with interest payable on the 2d of September, annually. A bond payable on demand is due instantly ; and a suit may be brought immediately, without any. special demand, the ¡general allegation of “ often requested” being sufficient. And such suit can be maintained only upon the ground, that the condition of the bond has been broken ; for a, suit can never be supported upon a contract which has been.performed, or before sthe tinte ¡of performance has arrived. And if a suit could be sustained upon this bond immediately, without any special demand, upon the ground that the condition of the bond had beep broken ; then the condition of the deed is broken also ; and an action of ejectment for the land, on .a petition to foreclose the equity of redemption, would have lain immediately. ,
    If i.his money was not payable immediately, without a special demand, still the mortgagor could not have a longer time than his life, in which to pay it ; and because he did not in his life time pay the money, the condition of the deed is broken, 
    
    But again ; by the condition of the bond the interest is to be paid annually, on the 2d of September ; and it is alleged |n the petition, that nothing lias been paid upon the bond. The plea states, that the interest arising on said bond (viz.) jg240 has been paid to the satisfaction of the Treasurer and the managers of the school-fund ; and that the same was, before the assignment of the bond, indorsed in fail thereon, up to the 2d of September, 1805. The plea does not allege, that any interest «as paid at the lime it fell due ; but, if not paid then, the condition of the bond was broken ; and, for this purpose, it might as well never have been paid. 
    
    The expression “ indorsed in full” means, that the whole gum of g240 was indorsed ; and not, that the whole interest due on the bond, on the pd of September. 1805, was paid and indorsed. The plea states, that j§240, was paid and indorsed ; but that sum would not be ill full for the interest due, at that time, on the bond :—the interest then due was $583 34 ; and it is a rule without exception, that payment of a less sum cannot be pleaded in full o< a greater, except the payment was made under an accord ; and in this case no tsuch accord is stated.
    A second point, made in this case is, that the petitioners are not vested with the legal estate. : ■.
    But a right to the money secured by mortgage, though not coupled with the legal estate in the lands mortgaged, is a .sufficient title in the petitioner, on which to found a decree pf foreclosure ; and this appears from the leading doctrines ol equity on the subject of mortgages.
    That the legal title cannot be drawn in question on a bill to foreclose ivas solemnly decided by the Superior Court, in the case of Owen v. .Granger, Hanford County, February term, 1802. 
    
    
      An executor or administrator of a mortgagee ⅜ fee, is entitled to foreclose the mortgagor, and receive the money or land ; and if the heir obtains a release from the mortgagor, he becomes a trustee to the executor. 
       A subsequent mortgagee, the legal title being in a first mortgagee, may, notwithstanding, foreclose the mortgagor, and all incum-brancers subsequent to himself, which was done in the case before cited of Owen v. Granger.
    
    To the person applying having right to the mortgage money without the legal estate in the land, it is the constant practice of a court of chancery to decree a foreclosure : this was done, by the whole court, at the September Term, in 1806. of the Superior Court, in Hartford County, ih the case of Williams v. Smith and Shelden.
    
    The person holding the mere legal estate is, in all cases, the trustee of him who has right to the mortgage money ; and although he may have gained a release of the equity of redemption from the mortgagor, this will not protect the legal estate in his hands, 
    
    
      Ingersoll, in reply.
    1, The petitioners shew what the bond was, and that it was payable on demand. The respondents shew, that it was given for the school fund. It follows then, by the law relative to this fund, that it should lie, and not be enforced. And, if any event should render it expedient to collect the debt, a special demand must be made.
    As to the interest due on the bond, it appears to have been paid, and indorsed on the bond. It is immaterial what the sum was ; sufficient it is, that it was received in full.
    
      2. But the principal question is, whether before the legal title is obtained, the plaintiffs may foreclose ? He contended strongly, that this coukl not be done ; that an equitable ti-tie is not enough.
    The Superior Court may have decided the point ; in many instances they have gone too far ; and we come here to obtain a correction of their errors.
    In the case of Owen v. Granger, the title of Owen was a legal title ; at least there was an authentic deed : and his title would be indisputably legal, on his extinguishing the prior right of the prior mortgagees.
    The case in Root’s Reports turned on this point, which should hold—the assignees who had the equitable title, and who could compel the legal title at pleasure, or the creditors. But that is inapposite to this case.
    The other cases cited go on the ground, that you shall not dispute the title of the mortgagee j but he must shew title in his petition.
    So the mortgagor, when sued by the mortgagee, shall not dispute his title, if he has estopped himself by liis covenants.
    But who is to bring the bill for foreclosure ? The mortgagee, Suppose the Treasurershould come forward; how could we defend against him ? If he has the right to foreclose, can the petitioners have the right ?
    
      
      
         1 Root 346, Atsop v. Hall. Co, Litt. 208 b.
      
    
    
      
      
         Esp. Dig. 210.
    
    
      
       Sec 2 Pore. on Mart. 1043,fourth Land. edit.
      
    
    
      
       2 Pow. on Mart. 686 to 692.
    
    
      
      
         1 Root 248, Lawrence v. Knap and Menzey.
      
    
   By the GovRT,

unanimously,

The judgment was affirmed.  