
    William Hunt versus Daniel Maynard.
    A mortgagee who has not taken possession of the mortgaged property, and become accountable for rents and profits, is not a trustee for the mortgager.
    Therefore, this Court, under St. 1817, c. 87, which gives it authority “ to hear and determine in equity, all cases of trust arising under deeds,” has no jurisdiction of a bill in equity brought by the assignee of the mortgager, in order to obtain an injunction against the mortgagee’s proceeding at law to recover possession of the mortgaged property, and to have the mortgage deed cancelled.
    
      It seems that a court of equity would not prevent a mortgagee from proceeding at law to recover possession of the mortgaged property, on the ground of a paroi agreement made by him with the assignee of the mortgager, that the assignee should hold die land discharged from the mortgage.
    This was a bill in equity. The bill sets forth, that Na thaniel Maynard,- on the 2d of March, 1814, mortgaged a iract of land to his father, Daniel Maynard, the defendant, to secure a note for 500 dollars, given by Nathaniel to Daniel, payable in one year ; that Nathaniel continued in possession of the land without any entry being made upon him by the defendant, and on May 1, 1819, he sold and conveyed the land to the plaintiff, for a consideration equal to the whole value of the land, by a deed with covenants of warranty against all persons and for quiet enjoyment f that under this deed the plaintiff entered on the land and has continued in possession ever since. The bill further alleges, that the plaintiff, feeling apprehensive that he might have to pay the balance due on the note of Nathaniel Maynard, and that he should be unable to recover the same of him, unless he, the plaintiff, immediately paid off the incumbrance and sued Nathaniel to secure the amount thus paid, did, on March 20, 1820, inquire of the defendant if he would receive the amount due on the mortgage and discharge it, which the defendant then agreed to do ; that the plaintiff, relying on this promise, on November 1, 1820, sent a messenger with the money to the defendant, and that the messenger tendered the defendant the amount then due on the mortgage; but that the defendant, being apprehensive that the design of the plaintiff in paying the money was to. obtain a right to sue the defendant’s son, refused to take the money ; and in order to induce the plaintiff to desist from his purpose of securing himself from his liability, professed great friendship for the plaintiff and his family, and gratitude for their kindness to a child of the defendant’s, and stated that he should take this opportunity to make a requital ; and that he would so manage his affairs that the plaintiff should never suffer by or on account of the mortgage ; and that if the plaintiff would not insist on paying the mortgage, and would forbear to sue his son for a breach of the covenants in his deed, the plaintiff should hold the land for ever discharged from the mortgage. The bill further alleges, that the plaintiff, relying on these assurances, took no further measures to secure himself, and forbore to sue Nathaniel for a breach of his covenants ; that Nathaniel became insolvent about the first of the next January, and has ever since continued so ; that on or about March 15, 1826, the defendant commenced a suit in the Court of Common Pleas against the plaintiff to recover possession of the mortgaged property, to which suit the present plaintiff pleaded in bar the matters above set forth, and on a trial by jury in this Court a verdict was found in his favor ; that no judgment was rendered on the verdict, but the case having been continued for the opinion of the whole Court, a new trial was granted, on the ground that the matter set forth in the plea did not constitute a legal defence to the action. (See Maynard v. Hunt, 5 Pick. 240.)
    The bill, after averring that the legal advantage obtained by the defendant is inequitable and founded in fraud, asserts the jurisdiction of this Court as a court of chancery, on the ground that the defendant’s estate is a trust estate created by deed, and concludes by praying that the mortgage deed made by Nathaniel Maynard may be delivered up to the plaintiff and cancelled, and that the defendant be enjoined from proceeding in his action at law, and from commencing an) other suit to recover possession of the mortgaged premises, and for general relief.
    
      Sept. 26th.
    
    
      April term 1829.
    To this bill the defendant demurs generally.
    
      D. Wells, for the plaintiff.
    A mortgagee has a trust estate in the mortgaged property. Pow. on Mortg. 142. The estate of the defendant being a trust estate trader a deed, this Court has jurisdiction by St. 1817, c. 87, and has power not only to issue an injunction, but to compel the deed to be given up. St. 1823, c. 140. If the Court has jurisdiction, it is a case proper for equitable relief; the circumstances show the grossest fraud on the part of the defendant. Lansing v. Eddy, 1 Johns. Ch. R. 51; Swift v. Dean, 6 Johns. R. 523; Foster v. Wood, 6 Johns. Ch. R. 87; 1 Madd. Ch. Pr. 111; Simpson v. Hart, 1 Johns. Ch. R. 98; Briggs v. Law, 4 Johns. Ch. R. 22. The situation of a mortgager and his assignee with regard to the mortgage debt, is analogous to that of principal and surety; the assignee is a surety for the mortgager, and entitled to the same relief in this case which a surety would be. Hayes v. Ward, 4 Johns. Ch. R. 123; Pain v. Packard, 13 Johns. R. 174; King v. Baldwin, 17 Johns. R. 384.
    
      Grennell, for the defendant.
    This Court has repeatedly said that it will not extend its equity jurisdiction beyond what is manifestly given. The interest of a mortgagee is not a trust arising under a deed, within the meaning of the statute. The mortgagee is not a trustee, until he takes possession and receives the rents and profits, for which he becomes accountable to the mortgager. Even in England a mortgage is not considered a trust estate. Co. Litt. 36, note z, by Thomas, and 38, Tucker v. Thurston, 17 Ves. 133. In Putnam v. Putnam, 4 Pick. 139, the Court say that no additional authority “ is given to this Court, as a court of equity, on the subject of redeeming mortgages, by any of the several statutes which have been passed in relation to the chancery jurisdiction of this Court.”
   The opinion of the Court was drawn up by

Parker C. J.

Has the Court jurisdiction of this case by virtue of the statute of 1817 ? It has not, unless the mortgage deed created a trust within the meaning of that statute But a mortgage deed does not per se create a trust; it conveys the estate subject to a condition. The mortgagee is not accountable to any one until he enters and takes possession and receives the rents and profits ; in which case he may in some sense be considered as trustee, for he is to ■render an account j but this must be done in the manner and for the purposes provided in the several statutes for redeeming mortgages, and he is not trustee in any other light.

The object of this bill would seem to be, to devest the mortgagee’s estate by paroi evidence of a promise founded on no legal consideration. If here were written evidence, the want of consideration would be fatal to the claim. And without such evidence, it would be unhinging our whole system of titles in real estate, to defeat the operation of a legal instrument under seal, in this way. We are called on to enjoin against the use of a mortgage deed, by verbal proof that the respondent had given up his estate. The proposition is self-evidently false.

‘ If the plaintiff has any case upon his representation, it is one of fraud, of which no jurisdiction has been given to this Court, unless it incidentally arises in cases where we have jurisdiction.

We are clear that the demurrer to the bill must prevail, and that the bill must be dismissed with costs. 
      
       See Revised Stat. c. 107, § 9.
     
      
       See 2 Story’s Comm. Eq 278, 283; Cholmondeley v. Clinton, 2 Jac. & Walk. 1,182 el seq.; Revised Stat. c. 81, § 8.
     
      
       See Maynard v. Hunt, 5 Pick. 243.
     