
    Chase v. Peck.
    
      Equitable Mortgage.
    
    'The grantee of land executed an unsealed agreement to maintain the grantor, pledging for that purpose the proceeds of the land, and in case of a deficiency, the entire fee. held, that the agreement, being the consideration of the grant, operated as an equitable mortgage of the premises ; and that a purchaser at a judicial sale, under a judgment recovered against the grantee, took subject to such equitable mortgage.
    In ejectment by the purchaser at sheriff’s sale, the party in possession can defend under such equitable mortgage; the remedy of the sheriff’s grantee is by a suit to redeem, and for an account.
    Appeal from the general term of the Supreme Court, in the sixth district, where a judgment recovered by the plaintiff upon a verdict had been affirmed.
    This was an ejectment for an hundred acres of land in Otsego county. The plaintiff made title under a sheriff’s sale of the premises, as the land of Alonzo Aylesworth, against whom he recovered judgment on the 81st Ma}^ 1848. The sheriff’s sale took place on the 12th June 1849.
    The defendant showed title under Sarah Howland, to whom Aylesworth conveyed the land in question on the 29th May 1848.
    It appeared on the trial, that on the 11th August 1843, Isaac Howland and Sarah his wife, very aged persons, ^conveyed the premises to Alonzo Aylesworth, their grandson, for the nominal consideration of one dollar—no money being, in fact, paid contemporaneously with the execution of the deed. Aylesworth made a writing, not under seal, containing the following .stipulation:
    "The said Alonzo hereby pledges the entire use of the farm, this day,¡conveyed to him, for the support of said Isaac and Sarah, and agrees to furnish all necessary support—such as victuals, clothing, medical aid, and all other necessary comforts of life—for both the said Isaac and Sarah; and agrees and binds himself to treat them kindly, and wait upon them attentively and in a careful manner, during their natural lives, and during the life of the longest liver of them; and should the produce of the farm be insufficient for that purpose, then the entire fee shall be appropriated for that purpose.”
    Aylesworth had been brought up by his grandparents, and was in liis minority at the time of this transaction. The parties all lived upon the farm, and Aylesworth managed the same, and provided for the support of his grandparents, until after the death of Isaac Howland in 1846. Having become involved in debt, and suits being pending against him, he reconveyed the premises to his grandmother, Sarah Howland, on the 29th May 1848, without other consideration than his obligation for her support, and his inability otherwise to perform his agreement. Mi's. Howland lived upon the farm, a fair rent of which was shown to be $60 per annum, until she sold it, in 1849, to the grantor of the defendant. Neither Aylesworth, nor any other person, subsequently contributed to her support: she died after the commencement of this suit.
    "The jury found a verdict for the plaintiff; and the judgment entered thereon having been affirmed at general term, the defendant took this appeal.
    
      Becker, for the appellant.
    
      Ferry, for the respondent.
   Denio, J.

The determination of this case will depend upon the character of, and the effect to be attributed to, the instrument executed by Alonzo Aylesworth to Isaac and Sarah Howland, at the same time that the latter conveyed to him the premises in controversy. From the two papers, taken together, it is apparent, that it was parcel of the consideration, upon which the conveyance was executed, that Ayleswortli, the grantee, should support the grantors during their joint and several lives. The paper signed by him professes, in the first place, to pledge the entire use of the farm for that purpose; and it is added, that, if its produce shall be insufficient for the object, the entire fee shall be appropriated to accomplish it. It was, probably, intended, that the transaction should operate, to a certain extent, as a gift; but this was only so far as the value of the property conveyed should exceed the value of the return which was to be . made for it. As respected the latter, the arrangement was a contract, which imposed a certain duty upon the grantee, to be performed for the benefit of the grantors, and which, moreover, attempted to create a lien-upon the subject of the conveyance, to secure the performance of the duty undertaken by the grantee. The intention of the parties is plain; but the question to be considered is, in what legal or equitable light the arrangement is to be regarded by the court. In our opinion, the instrument signed by Aylesworth is to be considered as creating an equitable incumbrance in the nature of. a mortgage.

By the law of England, as administered in the court of chancery, an equitable mortgage may be created by any writing from which the intention .to create it may be shown; or it may be effected, by a simple deposit of title deeds, without writing. It will also be allowed in favor a vendor, for unpaid *purchase-money, or of a purchaser who has advanced liis money on the faith of a contract for a conveyance. (Miller on Equitable Mortgages, pp. 1, 2, 218, and cases cited.)

The courts of equity in this state have adopted the general doctrines of the English chancery upon this subject, as upon many others. The cases of a mortgage created bv a writing not sufficient to convey the premises, or by a deposit of title deeds, have not been frequent with us; but the doctrine has been applied in a few instances, and I do not find any judgment or dictum by which it has ever been questioned. In Jackson v. Dunlap (1 Johns. Cas. 114), a vendor of land had executed and acknowledged a conveyance to the vendee, but a part of the purchase-money had not been paid, and it was then agreed, that the grantor should retain the deed, until the balance should be actually paid. It was equivocal, upon the testimony, whether the deed had been delivered so as to pass the title or not. If it had not been, the question we are considering would not arise; but Kent, C. J., considered the delivery complete, and that the deed was 'then retained by the grantor, by way of security, till payment; this, he' said, was the creation of an equitable lien in the grantee. The other judges seem to have been of opinion that the title did not pass. In Jackson v. Parkhurst (4 Wend. 369), it was held by the court, Judge Sutherland giving the opinion, that the pledge or deposit of a deed with the grantor, by way of security, would give him a lien in the nature of a mortgage; but the case being at law, it was held, that such a title could not be set up against the legal estate. In The matter of Howe and wife (1 Paige 125), the English doctrine, that an agreement for a mortgage, is in equity, a specific lien on the land, Avas asserted and applied by Chancellor Walworth.

The cases in which a lien for the purchase-money has been established, where the title had passed to the purchaser, are more numerous. (Garson v. Grear, 1 Johns. 380; Warner v. Van Alstyne, 3 Paige 513; Arnold v. Patrick, 6 Paige 310; Hallock v. Smith, 3 Barb. 267.) These cases proceed upon the simple principle Avhich the defendants seeks to establish. *The difference in circumstance Avhich exists in the present case is against the plaintiff; for Mr. and Mrs. Howland received back from Aylesworth a written instrument, in which the lien reserved Avas explicitly stated, while, in the cases referred to, the lien was predicated on the implied intention of the parties, without a writing or even a verbal agreement for that purpose. Another example of the same doctrine is furnished, where there is an executory contract for the purchase of lands, the title remaining in the vendor; and subsequently to the contract, lie suffers liens upon the premises to be created. It is well settled, that the interest of the vendee will be protected against every one but a bona fide purchaser or incumbrancer, who has advanced money or property without notice of the vendee’s equity. (Lane v. Ludlow, 6 Paige 316, note; Parks v. Jackson, 11 Wend. 442.) In such cases, the vendee is considered in equity as the owner, and the vendor as his trustee.

Assuming that it has been shown that Sarah Howland occupied the position of a mortgagee of the land, to secure the agreement of Aylesworth to support her during her life, the next inquiry is, whether the plaintiff, by recovering a judgment against, him and purchasing the premises on the execution, is in a better situation than he would have been, were she, or her representatives, now asserting a claim against him to subject the premises to the payment of a compensation for the provision which he had failed to make. Upon this point, the cases already referred to, for another purpose, and many others, are entirely decisive. It will be sufficientto mention the case In the matter of Howe, and that of Arnold v. Patrick, which are full to this purpose. In the last case, the equitable lieu for the balance of the purchase-money was established against a judgment-creditor who had sold the land on execution, and had himself become the 'purchaser. The chancellor said, the plaintiff in the judgment was not entitled to claim protection as a bond fide purchaser, even if he had no notice of the facts establishing the equitable lien; “ for,” he added, “ he bid in -the property on his own judgment for an antecedent debt, paying no new consideration; he, therefore, took the legal *title under the sheriff’s sale, subject to the equitable lien for the unpaid purchase-money.”

Considering the rights of the parties to be such as have been mentioned, and the fact being that the defendant is in possession under Sarah Howland, the remaining question is, whether the plaintiff can maintain ejectment on his legal title, against a party clothed with her equitable interest. It is well settled, that a mortgagee in possession, the mortgage being forfeited by nonpayment, can defend himself in a possessory action brought by the mortgagor, though, if he were out of possession, ho could not now maintain ejectment against the latter. (Phyfe v. Riley, 15 Wend. 248.) But this, I think, is not so, except in the case of a technical mortgage, conveying,, subject to the condition, a legal title to the premises. (Marks v. Pell; Jackson v. Parkhurst, supra.) If the present were, therefore, an action of ejectment, prosecuted under the former practice, in which nothing but legal principles could be taken into consideration, then, as the deed from Aylesworth to Mrs. How-land has been found to be fraudulent, I think, the defendant could not resist the plaintiff’s title. But, since the blending of legal and equitable remedies, a different rule must be applied. The defendant can defeat the action upon equitable principles; and if, upon the application of these principles, the plaintiff ought not to be put into possession of the premises, he cannot recover in the action.

It has been shown, that the premises were, in effect, mortgaged to Howland and his wife, to secure the performance of Aylesworth’s agreement to support them and the survivor of them during life, and that the plaintiff has taken the place of Aylesworth. When he obtained title by the execution of the sheriff’s deed, Aylesworth had been in default in the performance of his agreement for nearly three years; Mrs. Howland and her grantees, it is true, had been in possession, and had enjoyed the use of the premises, but no account has been taken to show how far the income'derived from that source would go in fulfilment of the agreement. This action is not brought for a redemption, and is not adapted to that kind of relief. It would be manifestly inequitable, to let the *^e^en(^an* possession, until he shall procure an account to be taken, and shall pay or tender the amount which shall be found in arrear upon the above-mentioned agreement, executed by Aylesworth, for the support of Mrs. Howland, up to the time of her death.

The judgment of the supreme court mu A be reversed; and, as we cannot certainly say what case the plaintiff may make, now that the legal principles which govern the action have been determined, there must be a new trial, with costs to abide the event. If the main features of the case cannot be changed, the only remedy for the plaintiff is to institute a suit for redemption, upon the principles which have been mentioned.

Judgment reversed, and new trial awarded.  