Reports of Cases Decided in the Court of Chancery of the State of New Jersey (Volume 55)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1898. Excerpt: ... Cummings v. Jackson. estate, no interest in the lands described can be sold under it; fifth, that if the instrument is not a mortgage, then no decree can be made in this case establishing the amount due upon any other lien on the premises, and sixth, that no counsel fee or costs for searches should have been allowed. It will be perceived that the primary question raised by the appeal is whether the instrument foreclosed is a valid and subsisting encumbrance and lien by way of mortgage upon the real estate, rights and appurtenances described therein, and the answer to it will, at the same time, dispose of the fourth and fifth grounds of appeal. Counsel for the appellants have founded their argument that the instrument upon which this suit was brought is not a mortgage, and does not contain words sufficient to create a lien upon real estate, upon the common-law definition and construction of a mortgage formerly held in England and in some of the earlier decisions in this state. But the later and now almost universallyaccepted definition of a mortgage was given by Mr. Justice Depue, in the case of Woodside v. Adams, 11 Vr. 4-17, 1$%, where the learned judge said: It may now be considered the established doctrine of the courts of this state that a mortgage of lands is not a common-law conveyance with a condition, but a mere security for the mortgage debt, the legal estate being considered subsisting in the mortgagee only for that purpose. Mr. Justice Story, in Flagg v. Mann, # Sumn. 486, 533, said: If a transaction resolves itself into a security, whatever may be its form and whatever name the parties may choose to give it, it is, in equity, a mortgage. Another distinction in mortgages should not be overlooked. We refer to that class called equitable mort...