
    [Lancaster,
    June 1, 1829.]
    RICKERT and another against MADEIRA.
    EJECTMENT.
    The interest of a mortgagee, whether the mortgage be equitable or legal, cannot be taken in execution.
    On the trial of this ejectment, before his Honour Judge-SMira, at a Circuit Court held for Schuy lkill county, the plaintiffs, Richard Rickert and John Reed, after having shown title to the premises in controversy in Jacob Boyer and David Shubert, and a deed, bearing date the 3d of Jipril, 1815, from Boyer dnd Shubert and their respective wives, conveying the premises in fee simple to John Hughes, for the consideration of seven hundred and seventy-five pounds, gave in evidence the, following agreement:-?—
    - *‘Agreement made this 27th day of May, in the year of our Lord, 1815, between Jeremiah Reed of Manheim township, Schuylkill county, of the one part; and John Hughes, of the township of Schuylkill, county aforesaid, of the other part, witnesseth that the said Jeremiah Reed doth agree, and by these presents has agreed-with the said John Hughes, to go his bail in a certain bond, payable to Jacob Boyer ', of Montgomery county, and David Shubert, of the county of Lehigh, in the sum of eight hundred pounds, payable on the 10th day oí Jipril, A. D. 1817; together with three years interest;- on the same; upon which bond the said John Hughes is to receive a title fora certain tract of land, situate on the old Sunbury road—it being formerly Melcher Shubert’s plantation, now in the possession of John Deatrich, on the following conditions, that is to say: That the said John Hughes is to deliver the said title into the possession of the said Jeremiah Reed, as a pledge for his services for going the said bail, .and nothing else; the said title to remain in the hands of the- said Jeremiah Reed, until the said bond is paid, or other security, for the payment of the same, such as shall be deemed sufficient by any three disinterested and reasonable freeholders, and no longer: and it is further agreed, that if the said Jeremiah Reed is compelled to pay the said bond when due, the said John Hughes is to pay the damage the said Reed sustains by the payment thereof: and it is further agreed, that if the said Reed detains the said title longer than the said Hughes offers to comply with the said agreement, then, in that case, the said Jeremiah Reed is to pay all the damage the said Hughes sustains by the said detainer. In witness,” &c.
    To July Term, 1817, Jacob Boyer and David Shubert brought suit against John Hughes and Jeremiah Reed, upon the bond mentioned in the article of agreement, on which they obtained judgment. Jeremiah Reed having died, a Scire Facias issued against his executors. Judgment was rendered in the Scire Facias; on -which execution’ issued, and a levy was made on the land in dispute, which was condemned. To. a Rlúries Venditioni Exponas, the sheriff returned,-that it remained unsold for want of buyers. - A judgment was likewise obtained by Richard Rickert against Jeremiah Reed for one hundred and twelve dollars, upon which- sundry executions were issued,-under which the land now in dispute', was sold by the sheriff to Richard Rickert and John- Reed, the present plaintiffs, for four hundred dollars, who received' the sheriff’s deed for the siame. The plaintiffs also proved, that the debt, interest, and costs, due in the suit brought on the bond for eight hundred pounds, given by John Hughes and Jeremiah'Reed to Jacob Boyer and David Shubert, mentioned in the-agreement, had been satisfied out of the estate of Jeremiah Reed. ■ '
    
    The defendant,'among other things, proved, that there was, on the 8th of February, 1829, due to Elizabeth Hughes, the wife of the said John Hughes, from Jeremiah Reed, as executor of the will of the-said Elizabeth’s father, the sum .of four hundred and seventeen pounds three shillings and four-pence, with interest from the 1st of November, 1818,. , , ...
    His Honour was requested by the defendant’s counsel to charge the jury upon several, .points which they submitted to him, all of which presented the same question, viz. Whether-by virtue of the agreement of the 27th of March, 1815, Jeremiah Reed had such an interest in the land in dispute, as made it liable to be levied on and sold for his debts ?.
    The opinionof the judge was in favour of the plaintiffs, for whom the jury found a verdict, with this.condition, “ That if the,defendant shall pay to-’ the executors of Jeremiah Reed, deceased, the sum of fifteen hundred dollars, on or before the 30th day of October, 1829, and- pay the costs of this suit, the verdict and judgment be taken off, andjudgment.be entered for the defendant.”
    ■ A motion, made by the defendants counsel, for a new trial, and in arrest'of judgment, having been overruled, an appeal was entered.
    
      Biddle, for the-appellant,
    contended, that the agreement of March 27th, 1815, constituted an equitable mortgage, and that the interest of a mortgagee, even under a* legal mortgage, c.annot be taken in execution. A mortgage, though in form á conveyance of the land, is. now uniformly considered nothing more than a security for a debt; a mefe chose in action, which goes to the executor. Wentz v. De Haven, 1 Serg. & Rawle, 319. M‘Call. v. Lenox, 9 Serg. & Rawle, 304. Jackson v. Willard, 4 Johns. Rep. 41. Runyan v. Mersereau, 11 Johns. 534. 16 Mass. Rep. 345. 1 Pow. on Mort. 114. Wharf v. Howell, 5 Binn. 502. Stoever v. Stoever, 9 Serg. & Rawle, 434.
    The jury had no right to prescribe the time of redemption.
    
      
      Leaser, contra,
    
    argued, that the obvious intention, of the agreement was to pledge the land itself as a security, and not-merely the title deeds, and that every interest in land, whether legal or equitable, was subject to execution. He cited 2 Cruise’s Dig. 92. 3 Pow. on Mort. 1050, 1051, 1055. Shaupe v. Shaupe, 12 Serg. & Rawle, 9. Lessee of Humphreys v. Humphreys, 1 Yeates, 427, Carkhuff v. Anderson, 3 Binn. 4. Chahoon v. Hollenback, 16 Serg. & Rawle, 425. Richter v. Selin, 8 Serg. & Rawle, 425. 20 Johns. 51.
   ■ The opinion of the court was.delivered by

Rogers, J.

This is an appeal from the decision of Justice Smith, in .the Circuit Court held for the county of Schuylkill. The single question is, whether the article of agreement between Jeremiah Reed and John Hughes, vested such an interest in the land claimed by the plaintiffs, as to make it liable to be levied on and sold by the sheriff for a debt due by Reed or his executors. The first point to which we must direct our attention-, is the nature pf the agreement; for it is contended, that'by the contract, Reed obtained an equitable interest, or estate, in the land itself. -Reed agreed to go bail for Hughes in a bond to Jacob Boyer, in the sum ' of eight hundred pounds. As an indemnity to Reed, the contract was made, in which Hughes agrees to deliver the title to the tract in dispute, into the possession of-Reed, as a pledge for his services in going bail, and nothing else. The title was to remain in the hands of Reed until the bond was paid, or other security given. The agreement further provides, that if Reed was compelled to pay the'bond when due, Plughes was. to pay any damage he might sustain; and that if he detained the title longer than Hughes offered to comply with the agreement, then Reed was, to pay all .the damage that Hughe's might sustain. One of the alternatives provided for has happened, for Reed has been compelled to. pay the eight hundred pounds for which he became security, and without question,, has a complete right of action against his principal. This is not denied; but it is contended, that they have mistaken their remedy. It will be remarked, the title only is deposited in the hands of Reed, and-we are not left to conjecture for what purpose, for the parties themselves expressly say, as apledgC'ánd nothing more, for Iris-services in going bail.. The possession of the land remains with' Hughes, with a right of lien’ in Reed. Reed does not, as in the case of a legal mortgage, obtain the legal title; but the title papers are merely deposited with him as an indemnity for any eventual loss he might sustain, by reason of his responsibility as bail. It is then an equitable mortgage, by deposite of title deeds, which may be created by parol, or by written agreement, as here, which'is the better and safer way, showing the nature and intent of the transaction. This, I believe, is no uncommon assurance in England, growing out of the equitable jurisdiction of the court, and relief is had in chancery. In one respect it differs from a legal mortgage, where the remedy is by foreclosure and transfer of the title to the land mortgaged. In an equitable mortgage, the chancellor degrees a sale of the land -in payment of the debt; for it is but the security for the debt, and does not vest any interest, or estate, in the land itself. He cannot by any process obtain possession, for an ejectment will not lie as on a legal mortgage. In one sense, an equitable mortgagee may be said to have an-interest in the land.;- that is, he has a lien on the land as' a fund, for the payment of his debt. But a judgment creditor has precisely the same interest. The question then recurs, is this such an interest.as is the subject of execution? There would not, perhaps, be much difficulty in distinguishing an equitable from a. legal mortgage, as the legal mortgage is the absolute conveyance of the land, to be defeated on'payment of the money loaned at a day fixed by the parties, and vesting the legal estate in the mortgagee, eo instanti the d.eed is executed. Not so-in an equitable mortgage, for there the legál estate remains in the mortgagor; the land, whether at haw or in equity, being but a pledge for. the debt. As, however, doubts have been entertained, whether a mortgage be liable to execution, we would wish to be understood as deciding, that the legal and equitable mortgage,, so far as regards this question, fall within the same principle. A mortgage must be considered either as a chose in action, or as giving title to the lánd, and vesting a real interest in the mortgagee; In the latter case, it would be liable to execution; in the former, it would not, as it would fall within the same réasoii as a judgment bond, or simple contract. If we should consider the interest of the mortgagee as a real interest, we must carry the principle out, and subject it to dower, and to the lien of a judgment; the inconvenience of which, would have -been intolerable, particularly at a time, when by law, the mortgagee had six months to record his mortgage. The sá'me objections which may be urged against one judgment,-being a lien on another judgment, will apply with equal force to the doctrine, that a judgment is a lien on a mortgage. That a mortgage is but a chose in action, a mere evidence of debt, is apparent from the whole current of decisions. A devise of a man’s personal, estate, carries with‘it all his mortgages. A mortgage may be released by an instrument not under seal, and an assignment of the bond, which usually accompanies the mortgage, transfers the right to the mortgage itself; for whatever will give the money secured by the mortgage, will carry the mortgaged premises along with it. The forgiving, the debt, although' by parol, will draw the land after it as a consequence. The whole result of the cases is, that a mortgage, although in -form a conveyance of land, is in substance but a security for the payment of money; and the debt being paid, or in any -manner extinguished, the mortgagee becomes a trustee for the mortgagor’. In consequence of the want of a Court of Chancery, our law differs from the law of England; for in England a judgment only binds a legal interest; in Pennsylvania, a legal and an equitable interest. In England, the relief is in chancery; but here, we enforce payment by the common law process of execution; and, hence, under, the construction of the act of 1705, for taking lands in execution for payment of debts, an. equitable as well as a legal title to land, has been considered, as subject to. the lien of $ judgment. The extent of the decisions in Pennsylvania, and this will be found, upon a critical ■ examination of all the cases, is to subject to execution all possible- contingent titles in land, accompanied with an estate, property, or real interest in the land, whether that interest be legal or equitable. And for the soundness of this position, I refer generally, to the Lessee of Humphreys et al. v. Humphreys, 1 Yeates, 429, Shaupe v. Shaupe, 12. Serg. & Rawle, 12, and to Streaper v. Fisher et al., 1 Rawle, 162. The doubt, whether mortgages are the subject, of execution, does .'not seem to be peculiar to Pennsylvania, for in Blanchard v. Colbitrn and wife, 16 Mass. Rep. 346; the Supreme Court of Massachusetts have ruled, ^That lands mortgaged, cannot be levied upon' for the debt of the mortgagee, unless he' shall have first entered ' on the land.” And in Jackson ex dem. Norton and Burt v. Willard, 4 Johns. 41, the Supreme Court of New York have gone still further, and have decided, “That lands mortgaged cannot be sold on execution against- the mortgagee, before a foreclosure of the equity of redemption, though the debt be due, and the estate of the mortgagee has become absolute at law.” Without undertaking to mark the extent of the doctrine in Pennsylvania, I.agree with Chief Justice Parsons, “ That the diificulties o.f levying upon - lands mortgaged, are insuperable.” The debt may require only, a small part of the land to satisfy it, and- several executions may be 'levied by several persons. This would throw difficulties in the way of the mortgagee, who would be unable to determine the amount of ■these several interests, which would not be compensated by any-advantages which would attend the engrafting this new principle into the law of Pennsylvania, particularly when we consider the nice and intricate questions which would necessarily grow out of it. These diificulties have produced the almost univérsal opinion among the profession, that lands so situated, are not subject to the debts of ■ the mortgagee by execution; and, it is an argument of no inconsiderable weight, that although mortgages are securities of such common occurrence, this is the first attempt which has been .made to subject the interest of a mortgagee under a levy and execution.

The court are of the opinion, in which Judge Smith, concurs, that the.judgment be reversed, and a venire facias de novo awarded.

. Judgment reversed, and a venire facias de novo awarded.  