
    *Adam Moore v. The Lessee of Isaac G. Burnet.
    The legal title of a trustee under a deed of trust, with a power to sell for the payment of the debts of the cestui que trust, is not divested by the discharge of the debts, but the trustee may maintain ejectment.
    This is a writ of error to the Supreme Court of Hamiltott county.
    
      The plaintiff, in the trial below, offered in evidence as the foundation of his recovery, a deed for the land in question, bearing date November 18, 1826, from William H. Harrison and wife, Jacob Burnet and wife, and Lewis Whiteman and wife, to Isaac Cr. Burnet. This deed contained the following recital: “ Whereas, the parties of the first part are indebted to the estate of Hr. Elias Boudinot, late of the State of New Jersey, deceased, in the sum of about $4,000, on account of the purchase of the premises hereinafter mentioned, and have agreed to convey the said premises to t,he party of the second part, with power to sell and convey the same and apply the proceeds to the payment of the said debt, the amount of which will be ascertained by reference to a bond now in the hands of the executors of the said Elias, and which is considered as a lien on said land. Now this indenture witnesseth, that the parties of the first part, for and in consideration of the premises, and for the further consideration of one dollar to them in hand, well and truly paid, etc., have granted, bargained, and sold, etc.
    The deed then proceeds, in the usual form, with covenants of warranty. Both parties claiming under William H. Harrison, there was no question raised by either party as to his title. The defendant claimed the land in controversy by virtue of a deed made by the sheriff of Hamilton county, on a sale of the premises as the property of William H. Harrison, upon a decree against him in 1828; under which sale, the defendant *went into possession. The defendant then offered evidence tending to show that the debt, mentioned in the deed to Isaac G-. Burnet, was paid before the sale under which defendant claimed, and asked the court to charge the jury that if they were satisfied that said debt was so paid, the plaintiff’s title was extinguished, and he had no right to recover. The court refused to charge as requested, but charged that, if the debt was paid it would not defeat the plaiptiff’s title. To this opinion of the court exceptions were taken, and they are now assigned for error.
    Charles Fox, for plaintiff in error :
    It will be observed that Isaac G-. Burnet never had any beneficial interest in this land. It was merely conveyed to him to secure payment of the debt due to Boudinot’s estate, and the conveyance, it is said, gave him a power, to sell if ho should think proper to exercise it, in order more fully to secure the payment of the debt. This instrument, as I understand it, is nothing but .a mortgage; and if so, it will not be pretended the judgment is correct. Now, to constitute a valid mortgage, there must be a person capable of granting, a person capable of receiving the estate, an estate to be conveyed, and a debt to be secured. But, I insist, it makes no difference, whether the creditor, or a third per•son, is the mortgagee. The object of the mortgage is to secure the debt, and whether the title is vested in the creditor or some third person, for his benefit, is immaterial. It may be to the creditor, or to one of many creditors, for the benefit of himself and -others. 7 Cow. 13; 13 Wend. 485.
    The case in 13 Wend, was a case where a mortgage was made :and conditioned to be void if certain legacies were paid. These legacies were not due to the mortgagee.
    The mortgage, in 7 Cowen, 13, was to secure payment of a debt, on which the mortgagees and two other persons were liable.
    *In 15 Johns. 205, and 3 Wend. 209, the deed was absolute on its face, but a written defeasance showed the intention of the parties was to secure payment of a debt; therefore, the deed was held to be a mortgage. So in 15 Johns. 555.
    That a deed absolute on the face of it may be shown by parol, to have been intended only to secure the payment of a sum of money, and therefore is only a mortgage, is now well settled. 1 Cow. 122; 18 Johns. 7, 110.
    The essence of a mortgage, I suppose to be the security for the payment of a debt, or for the .performance of some other lawful act. It is immaterial whether it is the grantor’s debt, or the debt of some other person, or whether it is to pay a debt due to the grantee or some other person, or for the performance of an act beneficial to the mortgagee or some other person.
    Now, in the present case, the object of the conveyance is declared in the first part of the deed, and that object is to secure payment of a debt. We have, then, the existence of a debt admitted; the object declared to secure the debt; and the deed also contains the power to sell the premises, to pay the debt. Surely the deed does not cease to be a mortgage, because a power of sale is contained in the deed. 18 Ves. Ch. 343. All mortgages contain that power in New York, and a statutory foreclosure is provided for under such power, without going i„to chancery. 1 Johns. Ch. 50; 2 Cow. 195. If the whole of this debt had been paid, would it be pretended that the power to sell would not. have ceased from that time ? The power to sell was only a means provided for enforcing payment; and if the object of the parties (the payment of the debt) had been accomplished,It is very clear the power to sell ceased at that moment. The addition of such a power is contained in all the modern English mortgages. 3 Pow. Mort. 1122, contains a form of mortgage with power of sale. 1 Pow. Mort. 110, 9 a, note.
    The fact, then, that this deed authorizes Burnet to sell to pay the debt, can not affect the matter one way or another ; *and leaving the power to sell out of the question, we have a simple conveyance to secure the payment of a debt; and the amount is to be ascertained by reference to the bond referred to. If this is not a mortgage I do not know what is. It is not necessary that there should be any defeasance, in fact, to constitute a mortgage.. 2 Sumn. 487.
    The case of Stratton v. Warren, Sabin, and others, 9 Ohio, 30, has no application, because, in that case, thei’e was no evidence of any debt due.
    Nor does the case of Baird v. Kirtland et al., 8 Ohio, 23, affect this case, because the nature of the transaction did not appear on the deed, nor was the money paid, although the court say in that case the transaction would only amount to a mortgage in equity.
    If, then, this is a mortgage, Harrison had an interest which could be taken and sold on execution, and the purchaser took subject to the mortgage. 5 Paige’s Ch. 9; 10 Ohio, 71; 3 Ohio, 21. And it is now well settled that payment of a mortgage debt is a discharge of the mortgage, and that a reconveyance is unnecessary. But the fact of payment is, of itself) in effect, a transfer of the title. 1 Cow. 122; 18. Johns. 113; 11 Ib. 534; 1 Marsh. 53; 1 J. J. Marsh. 257; 8 Ohio, 23; 1 Pow. on Mort. 110, note; 3 Mason, 520.
    So a tender, of the money due, is held to divest the mortgage of the legal title. 18 Johns. 114, 115.
    It is said, however, this is a deed of trust, and therefore the title was not in Harrison. In one sense, every mortgage is a deed of trust; but if it is intended to say this is a technical deed of trust,
    I deny that it can be so construed. There is no trust declared in the deed itself, and if any trust exists, it is only by implication, and such a trust exists in all mortgages. If I transfer, by deed, absolute on its face, although really to secure payment of a debt, undoubtedly the mortgagee may be considered a trustee. But we have seen that it makes no difference as to the character of the instrument, whether the deed, absolute on its face, is turned into a mortgage by parol, *or by a written defeasance. The fact of its being to secure a debt, and that the debt is paid, may be shown at law or in equity, and when shown, defeats the title of the mortgagee. 1 Cow. 122 ; 18 Johns. 7, 110.
    I claim, therefore:
    1. That, as between Moore and Harrison, we showed a judgment, execution, and sale, and hence Harrison could not say we had no title,, as against him.
    2. That the'deed from Harrison to Burnet is, in truth and in fact, a mortgage, and not a deed of trust.
    3. That if it could be considered a deed of trust, after the payment of the debt, it was a trust for the benefit of the grantor, and therefore void, and could not operate against the levy made after such payment, and that the court ought so to have instructed the jury; but not having done so, the judgment ought to be reversed.
    Wright, Coffin & Miner, for defendant in error:
    The argument, on the part of the plaintiff in error, is directly to establish the fact that the deed to the lessor of the plaintiff was but a mortgage, and that being such, the payment of the money extinguished the mortgagee’s right, and reinvested him with the estate. This court, in St. Clair v. Morris, 9 Ohio, 15, say that a mortgage in fee, is, in reality, a fee simple conditional, which is as large and ample estate as a fee simple absolute, though it may not be so durable ; and a transfer of such an estate can not be affected by a mere assignment of the debt. It would seem, then, that if the estate was so ample that a transfer of the debt, which is claimed to be the principal ingredient of the mortgage, will not transfer the estate, that payment, or any other matter, evidenced by less solemn act than the mortgage, can not be held to effect that end. But a mortgagor, before condition forfeited, is only regarded the owner of the mortgaged premises, against all but tlie mortgagee; and if his right of possession be levied upon and sold, he only acquires that right, and upon it can not defend himself in possession against the mortgagee. 2 Ohio, *224, and mortgaged lands, in the hands of the mortgagee, can not “ be sold on execution until the equity of redemption is foreclosed.” Hill v. West, 8 Ohio, 224.
    The general assembly, in 1836 (Swan’s Stat. 270), finding doubts and inconvenience to exist as to making releases of mortgaged property, provided, for the first time in this state, that the entry of satisfaction, on the mortgage, or on the record, should “ operate, and be taken, to release the said mortgage to whoever might be entitled to a release.” In the case before the court, no evidence exists on the deed, or upon the record of it, of any satisfaction. The legislative provision is a good one., This court will not extend it. Before this act, we contend the’estate, vested in the mortgagee, could only be legally divested, and vested in the .mortgagor, by deed of release, an instrument of eqaal dignity with the conveyance.
    It is not necessary, we think, to inquire how far courts of equity may go, to ascertain whether a conveyance, absolute on its face, was, in fact, a mortgage, because our case bears no analogy to such.
    Our title is a deed of trust, absolute on its face, and in fact. It is true, the recital in the deed, in setting forth the reason for the conveyance, speaks of a debt due by the grantors to a third person, the intention of paying that debt, and to confer power to sell the estate conveyed, to effect that end ; but, having recited these facts, it conveys the land in fee absolute, without any condition of defeasance, in form, on its face, or, in fact, in any way. If, then, it were to be held, which we think it can not be, that the performance, in fact, of the condition of a fee conditional, saves the estate from becoming absolute, and ipso facto, worked a reconveyance, still that is not our case, simply because there is no condition of defeasance connected with our deed, evidenced by it, or otherwise. If, also, in such fees conditional, the grantor is held the owner until the condition of the grant which is to render it absolute has happened, and, until then, may be sold as his, yet, again, that is not this case. We have now to do with the grant actually made, not with any other the parties ought, or may have intended, to make. *If the deed does not convey the estate the parties intended, this court can not, in this way, correct it, and make it conform to their intention. Can any one say this deed is a mortgage in form or fact? We think not. And though a mortgage may, to some extent, be regarded as a trust, it does not follow that a deed of trust proper, as familiar to the law as a mortgage, is to be taken and held to be a mortgage, to let in a technical adverse claimant.
    In any view in which we may look at this case, it appears clear that the court did not err in either of the particulars named, even if the court suppose the evidence offered received, which does not appear; and if rejected, this court can not notice that, because no exception appears to have been taken to that. The practice in New York is peculiar to the laws of that state, and not well adapted to our law on this subject.
   Read, J.

William H. Harrison, Jacob Burnet, and Lewis Whiteman had, by deed, with full warranty, conveyed this property to Isaac G. Burnet, with power to sell and pay to Elias Boudinot $4,000.

This deed places the legal title in Isaac G-. Burnet, the lessor of the plaintiff in ejectment. Whilst the legal title was thus in Isaac Gr. Burnet, one-third of the estate was sold under a decree, as the property of William H. Harrison. The purchaser then, of course, takes but Harrison’s interest, whatever it may be.

Having but the equity, at most, by thé sheriff’s deed, he is here in court, urging it as a bar to a recovery in an action of ejectment.

Counsel perceive that this is an end of their case, and seek to avoid it, by contending that the payment of the $4,000 to Boudinot, ipsto facto, destroyed the deed to Isaac Gr. Burnet, and reinvested the cestui que trust, William H. Harrison, with the legal title, and that it has passed to the purchaser under the decree.

To make out this conclusion, it is contended that this is a case of a satisfied mortgage.

*To place it upon the most favorable footing for the defendant in ejectment, it is not a satisfied mortgage, but a satisfied trust. A cestui que trust having the legal title, may maintain ejectment after the trust is satisfied. Hopkins et al. v. Stephens et al., 2 Rand. 422; Hopkins et al. v. Ward et al., 6 Munf. 38. From anything that appears in the record, Isaac Gr. Burnet may be more than & mere naked trustee; he may have an interest.

There is nothing in this deed to distinguish it from an ordinary deed of trust, where a conveyance of the trustee to the cestui que trust is necessary to reinvest him with the legal title. It is not at all the case of a mortgage, because a mortgage is a mere incident to a debt which it is given to secure, and never divests the legal title of the mortgagor as to the rest of the world, nor even as to’ the mortgagee, except to allow him to obtain possession and apply the rents and profits to satisfy his debt. A mortgage lives and dies with the debt; satisfaction destroys it.

But such is not this case. The whole legal title passed in trust to the lessor of the plaintiff, where it remains, and entitles him to recover in ejectment.

The court did not err in their charge to the jury.

Judgment affirmed.  