Heirs v. United States Bank of Pennsylvania

ORMOND, J. — Before proceeding to the consideration of the merits of the case, we will first examine the objection to the parties. It is urged, that it is uncertain who are the complainants. The bill is filed by Cowperthwaite, Dunlap & Cope, to whom, acting for, and on behalf of the Bank, the bond and mortgage were executed. The next bill in order, is an amended and supplemental bill, filed by the complainants, in which they disclose the fact, that they are mere trustees for the Bank, and pray that the Bank may be made a party. Another amended and supplemental bill was filed, reciting at length the two former bills, and, among other things, disclosing the fact, that Cowperthwaite, Dunlap & Cope, had assigned all their interest in the mortgaged premises, to James Dundas and others, and pray, that the assignees may bo admitted complainants, with — 426 — the Bank, and that the names of Cowperthwaite,'Dunlap & Cope, be stricken out of the bill. It cannot be doubted, that all these persons, who at different times, make their appearance in the cause, constitute, in law, but one person. Cowperthwaite, Dunlap & Cope, who filed the first bill, were mere trustees, but did not .disclose their ces-tui que trust. In the second bill this is done, but certainly this cannot prejudice the rights of any, or create any difficulty. Afterwards, when the Bank went into liquidation, the fact is brought to the notice of the Court, and the names of the assignees spread upon the record, as parties complainant. This was undoubtedly correct. It does not appear from the record, whether Cowperthwaite and others were dismissed, as they prayed to be. They therefore remained as nominal parties, having ceased to have any interest in the matter in litigation. It is supposed, that they are placed in such an attitude, that they may be considered as parties to the bill, or not, as may suit their convenience. This is undoubtedly a mistake. They are parties to the bill, and as such, estopped from denying any fact there alledged by them. This is not the case of a party who has no interest, joining in a bill with one who has. The interest of all these parties is the same. The bank is the principal, the others are trustees, in whom the title is vested. It is, in fact, merely the case of trustee, and cestui que trust, uniting in the sa'me bill; and although in this case; the Bank was not a necessary, it was certainly a proper party to the bill. Proceeding to the examination of the merits, we will in the first instance, endeavor to ascertain the place where the contract was made. Henry Hitchcock, resident in Mobile, goes to Philadelphia, and makes the following proposition to the Bank of the United States: Philadelphia, May 25, 183S. Sir — I, the undersigned, am indebted to the President, Directors & Company of the Bank of the United States, in the following sums, independently of my liability for others, not now brought into view, and for the payment of which sums other satisfactory arrangements will be made, viz: [Here follows a list of the debts, amounting, in all, to $520,-530 96.] — 427 — To this sum, it is now proposed that the Bank add in money, in Mobile, for the purpose of improving and rendering productive, the improved portion of the real estate hereinafter proposed by me, to be mortgaged to the Bank, to secure the payment of the above debt. This sum to be advanced, and the prior liens upon it, hereinafter mentioned, with the interest on the whole, at the rate of eight per cent, to be advanced as the improvement progresses, and the payments are required. [Then follows a list of the liens which existed upon the property proposed to be mortgaged.] To secure the payment of the above sum of $620,530 96, after payment of the existing liens above named, with interest on the whole debt, as above, and all the advances, which have or shall be made, by the said Bank, on account thereof, at the rate of eight per cent, per annum, at the following periods of time, and in the following proportions, in the city of New York, that is to say : Two fifths thereof, of principal and interest to 1 March, 1838, (as stated above,) on 1 March, 1839. One-fifth thereof, (as above,) 1 March, 1840. One-fifth thereof, 1 March, 1841. One do. do. 1 March, 1842. The whole to be paid as above, in the city of New York, with the whole amount of the above debt and incumbrances unpaid, to be paid half yearly, in New York, on the 1st September, Í838, and on the 1st day of March and September, in the years 1839, 1S40, 1841, and 1842, until the whole is paid; and I do hereby promise, to make and execute, in due form of law, to the said President, Directors & Co. of the Bank of the United States, their successors and assigns, a full and sufficient deed of mortgage, of all the following described real estate, free from all incumbrances, except as herein specified : [Here follows a list of the property, with the value, amounting in all to $986,200 00.] And I hereby, also promise, contract and agree, to, and with the said President, Directors & Company of the Bank of the United States, faithfully to invest the whole of the said sum of one hundred thousand dollars, herein proposed to be advanced to me, by the said Bank, for that purpose, in the substantial and beneficial improvement, of such portions of said mortgaged real estate, as may most require it, to make it productive; to — 428 — be laid out and expended, under the supervision and approbation of George Poe, as agent of the Bank, at Mobile, previously obtained: who shall also be appointed by me, by a proper instrument of writing, the sole receiver of all the rents and profits of the said real estate, to be mortgaged to the said Bank, until the debt is fully paid; to be paid by him as received, half yearly, on the 1st of March and September, of each year, to the credit of my said debt and liability, as above referred to. And I do hereby further stipulate and agree, that on my failure to pay, or on the non-payment of any one of the said annual instalments of principal, or the interest, half yearly, as the same shall become due and payable, as herein provided for, the entire debt, with the interest that shall be then due thereon, shall be deemed and considered as all due presently, and on demand. And the said President, &c., shall thereupon, and in that case, have the right, and be at full liberty, to proceed to foreclose their said mortgage, without further delay, and sell the said mortgaged real estate in parcels, as they may deem best, for cash, to the highest bidder, and apply the proceeds towards the payment of the said mortgage claim. And if the proceeds of the said real estate, after the payment of the existing liens, with all costs and legal charges against it, shall not be sufficient to discharge and satisfy their said claims in full, I hereby promise and contract, to pay to the said President, &e., the deficiency. The surplus, if any, after discharging said claims, to be paid to me, &c. HENRY HITCHCOCK. Nicholas Biddle, Esq., President, &c. Upon which proposition the Bank made the following order: Bank of the United States, May 25, 1838. The above and foregoing proposition of Henry Hitchcock, has been agreed to, and accepted by the President, Directors & Company of the Bank of the United States, and their agent at Mobile, George Poe, Jr. Esquire, will be authorized and instructed to carry it into immediate effect, on the part of the Bank. HERMAN COPE, 3d Cashier. The agreement was consummated in Mobile, on the 14th July, 1838, by the execution of the bond and mortgage, contemplated by the proposition of Mr. Hitchcock. The sum stipulated to be advanced, #100,000, was paid to him at different — 429 — periods, between the 14th July and the 24th November, of the same year; and was expended in the improvement of the mortgaged premises. By the proposition made in Philadelphia, Mr. Hitchcock distinctly admits his indebtedness to the Bank; where this debt was created, does not appear, and it is therefore fair to assume that it was created in Mobile. Be that as it may, he admits his indebtedness, and proposes an additional advance to him in Mobile, and in consideration thereof, agrees to execute a bond and mortgage on certain property in Mobile. This proposition, though acceded to by the Bank, is certainly not the contract of the parties; it clearly contemplates the execution of the contract there proposed, in Mobile. The fact that Mr. Hitchcock was in Philadelphia when the proposition was made, has no tendency to show that the contract was there executed. It is, in effect, precisely the same, as if the proposition had been made by letter from Mobile. It is, in faet, a proposition to make a future contract in Mobile, which the Bank acceded to, and promised to direct their agent to execute. Both parties so considered it. Mr. Hitchcock lived in Mobile; there the property to be mortgaged was situated — there the money was to be received — there the mortgage was to be made — in a word, there the proposition was to be carried into effect, by the execution of the contract. On the 14th July, 1S38, in Mobile, Mr. Hitchcock, pursuant to his proposition, executed to Messrs. Cowperthwaite, Dunlap & Cope, his bond, admitting his indebtedness to the Bank, in the sum of #620,530 96, with interest, at the rate of eight per cent, per annum, from the 1st March, 1838; the interest to be paid semi-annually, and the principal in four annual instal-ments, in the city of New York. On the same day, he executed to them a mortgage on a large amount of real estate, situate in Mobile, to secure the payment of the debt. It is now insisted that this contract is void, because the Bank had no power by its charter, to make any contract, reserving a higher rate of interest than six per cent, per annum. That it is void, because it violates the law of Alabama — and if both these propositions are incorrect, then it is void by the law of the State of New York, where, by the terms of the contract, it was to be performed. — 430 — The law of Alabama, supposed to be violated by this contract, is not the general law against usury, which allows eight per cent, per annum, to be reserved for the loan of money, or forbearance of a debt; but it is the proviso to the act of 1818. [Toulmiu’s Dig. 443.] The act of ISIS, authorized any rate of interest to be reserved,for the loan,or use of money, &c., which the parties might agree upon in writing; to which is a proviso, in these words: “Provided, that nothing in this act contained, shall be so construed, as to make it legal for any bank to receive more than at the rate of six per cent, per anmtm, for and upon its loans and discounts.” This act was changed the succeeding year,by an act forbidding more than eight per centum, per annum, to be reserved on any loan of money, but without expressly repealing the former act. In the compilation of the law subsequently made by Mr. Aikin, this proviso is incorporated with the statute law, Aik. Dig. 263, § 3, and again in Clay’s Dig. 284, § 3. The argument drawn from this, is, that it is a statutory declaration, that no bank shall take more' than at the rate of six per centum, per anmtm,on its loans and discounts — that this prohibition must apply, as well to foreign corporations who, by comity, are permitted to make contracts within our limits, as to our own banks. It is impossible to misapprehend the intention of the proviso to the act of 1818, at the time of its enactment. At that time, the Huntsville Bank was in existence, and the Tombeckbee Bank was chartered at the same session, and,in the charter of both these banks, there was a prohibition against reserving more than six per cent, per annum, on their loans and discounts. The proviso, then, was inserted from an apprehension, that, in the hands of a corporation, the power to stipulate for any rate of interest the parties might agree on, would be liable to an abuse, which would not attend the same contract between individuals. Such being the intention of the proviso, and all the banks of the state being confined, by their charters, to six per cent, interest, it is not easy to perceive for what purpose it was retained on the statute book, after the power given to individuals to stipulate for any rate of interest, was taken away; especially as the prohibition against taking more than six per cent, per annum, has been repeated in the charter of every bank incorporated since that time. — 431 — Subsequent laws have been passed, authorizing the banks of the State to take more than six per cent, per annum, in certain cases, and neither the restriction in their charter, nor the proviso we are now considering, has ever been supposed, to extend to the purchase by the banks of bills of exchange. It would, therefore, seem perfectly clear, that the proviso is a dead letter as it regards our own banks, and has been retained on the statute book, without any distinct apprehension of its true intent and meaning. It is not credible, that it was retained on the statute book, with the design that it should operate on foreign corporations. Such was certainly not the design of its enactment, and if the legislature had subsequently conceived the intention of passing a law to operate on foreign corporations, it is inconceivable that they should have adopted this obsolete proviso, to effectuate their purpose. Without therefore entering upon the inquiry, whether this contract can be considered, either a loan, or discount, we cannot come to the conclusion, that the transaction is forbidden by any law of this State. Is the contract void, because the money was to be paid in New York, where the statute rate of interest is seven per cent., and all contracts reserving a higher rate of interest, are declared void? This is a question of the highest possible magnitude, from its intrinsic importance, and the vast amount of property involved in its solution. It has been argued, with an earnestness, and ability, commensurate with the stake. It has received from us a patient and most1 deliberate examination, and we will now proceed to state the results of our deliberations. Upon this vexed question, certain propositions have been generally, if not universally, admitted. Personal contracts, are to have the same validity, force, and interpretation, in every other country, which they have in the country where they are made; provided, the contract is not offensive to the rights, morals, or public policy, of the country, in which it is sought to be enforced. If the parties stipulate for the performance of the contract in another country, the law of the place of performance will govern the contract. It follpws, as a corollary, from this, that, if the rate of interest be higher at the place of performance than it is at the place of contract, the parties may stipulate for the higher rate of interest; and if the contract is — 432 — silent as to the interest which is to be paid, for delay, after the contract matures, the law of the place of performance will furnish the rule. [Story Con. of Laws, 2 ed. 246, 252; 2 Kent’s Com. 4 ed. 459 to 461; Andrews v. Pond, 13 Peters, 65.] May the parties stipulate, for the rate of interest allowed by the place of the contract, when that is higher than that of the place of performance ? Upon this question, unfortunately, there is a great diversity of opinion. The Supreme Court of Louisiana, held the affirmative of this proposition, in Depau v. Humphries, 8 Louisiana Rep. 1. That, was the case of a note made in Louisiana, payable in New York, the parties stipulating for the payment of a higher rate of interest, than was allowed by the usury laws of the place of payment. The case was most elaborately considered, and after a full examination of the civil and common law writers, and authorities, the Court determined, that the contract was valid. So, also, Chancellor Walworth held the same doctrine, in the case of Chapman v. Robinson, 6 Paige, 627. There the facts were substantially the same, as in the preceding case, with the additional fact, (which also exists in this case,) that a mortgage was executed by the debtor, on lands, lying in New York, the place where the contract was made, though to be performed in England. See also, to the same effect, 7 Paige, 616. On the other hand, Judge Story, in his Conflict of Laws, after reviewing these decisions, maintains, that a rate of interest higher than that of the place of performance, cannot be stipulated for, though it be allowed at the place of the contract. [Story Con. of Laws, 247.] Amidst this conflict of jarring opinions, we must determine this question on principle, and by analogy to other known and settled rules of law. A corrupt intention to take illegal interest, is of the essence of usury. When a note is made in this State, and here payable, reserving a higher rate of interest than the law allows, the intent to commit the offence of usury, is apparent upon the contract itself. If made here, and payable elsewhere, such an intent may, it is true, exist, but it does not appear from the contract; and as the intention may be fair, and honest, a Court of justice ought not to presume it to be otherwise. Chancellor Kent says, “ The general doctrine is, that the law — 433 — of the place where the contract is made, is to determine the rate of interest, when the contract specifically gives interest; and this will be the case, though the loan be secured by a mortgage on lands in another State, unless there are circumstances to show, that the parties had in viewthe law of the latter place in respect to interest.” [2 Kent. Com. 469, 4th ed.] So, also, it is clear, that, although the interest of the place of payment may be agreed on, though it be higher than that of the place of the contract, yet, if the intent be to obtain usurious interest, the contract will be void. [Andrews v. Pond, 13 Peters, 65.] As, therefore, the place of the contract, in the absence of any corrupt intention, furnishes the rule, when the contract specifically gives intercut, it would seem to follow necessarily, that the contract, if valid there, would be valid at the place of payment though it reserved a higher rate of interest than was allowed by law, on contracts made at the latter place. There is, however, another incident of this contract, which more peculiarly stamps its true character, at least in this State, and upon this proceeding. The bill is filed, to have the benefit of a mortgage executed here, upon lands situate here. This mortgage was made to secure the payment of a debt created here, reserving the legal interest of this State, and this was the domicil of the debtor. Can we refuse to enforce this contract, which strictly conforms to our own laws, merely because the money, to secure the payment of which,,it was made, was payable in another State, where the rate of interest was lower than it is here ? In our opinion, we cannot. It is not pretended that the form of the contract Avas. a' cover to evade the usury law of New York. The contract is therefore to be considered as bona fide, it is authorized by our law, and we cannot refuse to enforce it. We have not considered it necessary to examine at length the numerous English and American cases, cited by the plaintiffs’ counsel on this point’, to be found on the brief of their argument. None of them are precisely in point, though there are dicta going the length contended for by them. The cases cited by the defendant’s counsel, from 8th Martin, and 6th and 7th Paige, are identical with this, and, in our opinion, determine the law correctly. We are conducted to this conclusion, not only because, upon authority, such appears to be the law, — 434 — but also, because it accords with sound morality, and the obligations of good faith. It is further contended, that the Bank had no power to make this contract, by the charter. The fifth article of the act incorporating the Bank, contains the general grant of power to the Bank, to hold real estate under certain restrictions — to deal in bills of exchange, &c. A portion of the sixth article is as follows: “The rate of discount at which loans shall be made within this commonwealth, shall not exceed one-half of one per cent, for thirty days.” It cannot be doubted, that the legislature may impose such terms as it pleases, to the exercise of a power granted to a corporation, and if the power be not exercised 4n the mode prescribed, the act will be void. [Head & Amory v. The Providence Insurance Co. 2 Cranch 127; N. Y. F. Ins. Co. v. The M. F. Ins. Co. 7th Wendell, 31.] Here the legislature have not prescribed the mode, in which the power shall be exercised. The power to loan is expressly granted, with a prohibition, that not more than six per cent, per annum shall be taken, or reserved, upon its loans, within the State of Pennsylvania. It may be conceded that a violation of this restriction, would, within the State of Pennsylvania, render the act void. Such was the decision of the Supreme Court of the United States, in the case of the Bank of the U. S. v. Owens, 2 Peters, 527. The principle of the decision, avowed by the Court, and sustained by numerous citations, is, that the act, which, in that case, was lending money, at a higher rate of interest than the charter authorized, was an act in violation of a public law, and therefore void. The same decision was made by the Supreme Court of Ohio, in the B’k of Chilicothe v. Swayne, 8 Ohio Rep. 258; but the reason assigned is, that the Bank had no power to act, but in accordance with the terms of the charter, which is, perhaps, in substance, the same principle. A different conclusion was arrived at by the Supreme Court of Connecticut, in the case of the Philadelphia Loan Co. v. Towner, 13 Conn. 249, where it was held, that such an act was merely a violation of the usury laws of Pennsylvania, and the security only was void. In these cases, the act complained of, was a violation of the statute law of the State where the contract was made; in the case pf the United States Bank v. Owens, of an act of Congress j but — 435 — in this case, there is no violation of any law. The prohibition of the charter, by its express terms, does not extend beyond the limits of Pennsylvania, and cannot have an extra territorial efficacy, as a law. It cannot be controverted, that a corporation, when permitted to act by the comity of another State, within its limits, can exert no power, and do no act, which it is not authorized by its charter to do. These faculties, when exerted in a foreign State, must be in subordination to its laws, and declared public policy. It would, therefore, have been a most useless act in the legislature of Pennsylvania, to undertake to prescribe the conditions upon which it should exert its faculty of lending money, in a foreign State, where, by comity, it might be permitted to act. All that it was in the power of the legislature of Pennsylvania to do, was to give it the capacity to do the ac.t. It did confer on it the power to lend money, and when it exerts this power in a foreign State, it must conform itself to the laws of that State. If the prohibition had been ten, instead of six? per cent per annum, most certainly this would not have authorized the Bank to take more than the legal rate of interest, at the place where the contract was made, and for the same reason, it may take more, if the law of the place permits it. The error of the argument, consists in not observing the distinction between the power to do an act, and a mere incident of the power; which being purely accessorial, may be done or omitted, without affecting the power itself. This precise point, was thus decided by the Supreme Court of Louisiana, in the ease of Frazier & Co., and others, v. Wilcox and others, determined in May, 1S43, of which we have seen a manuscript opinion of the Court. That was the case of the Pennsylvania Bank of the United States, establishing an agency in New Orleans, for the purpose of banking. In the case cited, it had made a loan at ten per cent, per annum, and the Court held, that as that rate of interest was allowed by the laws of Louisiana, the contract was valid, notwithstanding the restraint in the charter, on loans within the State of Pennsylvania. The result of this investigation is, that the contract between Hitchcock and the Bank is not usurious, or made in contravention of the laws of this State, and that the Bank had the power to make such a contract within this .State; it follows, therefore, — 436 — that the mortgage taken by the Bank, to secure the debt, may be foreclosed. Here, our task would be at an end, but for the peculiar form of the decree of the Chancellor, that the complainants might, at their election, take a decree for a strict foreclosure, or have a sale of the mortgaged premises. This is only important to the defendants, upon the assumption that the mortgaged property is worth more than the debt secured by it. However improbable this may be, we cannot act upon the contrary presumption, but must assume that the heirs, and creditors, have an interest in the equity of redemption, which ought to be protected. This brings us to the consideration, of the questions which arise under the conveyance by Mrs. Hitchcock, to the Bank. It is insisted by the counsel for the plaintiffs in error, that the devise was to Mrs. Hitchcock as executrix; that she could not act under the will, except in her capacity of executrix; and that not having qualified as such, her acts were void. The seventh clause of the will in which the particular devise in question is made, is as follows: “ For the purpose of having my estate properly settled, and administered, during the minority of my children, I do hereby appoint my dear wife, Anne,my sole executrix; and Ido bequeath and devise the same, both real and personal, to her, in trust,- with full power to sell, either at public or private sale, all, or any part thereof, and the proceeds to re-invest, and re-sell, at her discretion, for the purpose of paying my debts, and legacies, or for a more advantageous investment, and good, and sufficient, deeds, and conveyances, to make therefor. It being my intention, and will, that my estate shall be kept together and held in common, for her benefit, and that of my children, until they shall become of age respectively; at which time, and as soon after as any one of them comes of age, he, or she, is to receive their proportion; it being always understood, that my wife is to receive an equal proportion of my estate, with my children, she and they having share, and share, alike.” The will was made on the 13th May, 1836. On the 13th September, 1836, he published a codicil, re-affirming his will, and giving some additional legacies, and declaring, that it should include all his estate, real and personal, to that date. — 437 — On the 4th August, 1837, he made a second codicil, in which he recites the great revulsion which had just taken place in commercial affairs, and expressed his apprehensions that it might affect his estate, and made some change in the legacies he had previously given, and re-affirmed, and republished the will, in all other rpspects. On the 21st February, 1838, he made a third codicil, in which he recites, that he"has purchased some real estate since the date of the last codicil, which he desires his executrix ta carry into effect according to the directions of his will. On the 10th of August, 1839, he made a. fourth and last codicil, in which he says he has reviewed the will, and previous codicils,"and adds: “ I have no new testamentary disposition to make, but desire, that my will as it results from four papers heretofore executed by me', be carried into effect.” and after enumerating the four testamentary papers, and describing them by their dates, he continues: “ To the end, therefore, that my said executrix shall have full power to sell, convey, and dispose of real estate, as well as all other property, I again declare my intention, that such power to sell, and convey, shall extend to all lands acquired since the making of said testamentary papers, as well as to those acquired before, full power being intended to be given her in this respect, I do, therefore affirm again, the said testamentary dispositions, and desire them to be carried into full effect, the last of course controlling previous dispositions, when inconsistent.” The office of the codicil, is to explain, add to, or subtract from the provisions made in the will. It is annexed to the will, and in law the will and codicils — if there be more than one — constitute but one instrument. [Fuller v. Hooper, 2 Vesey, Senr. 242.] In Leavens v. Butler, 8 Porter, 388, it is said by this Court — “A codicil is a part of the will; it is therefore to be construed with it, and may, as a context, confirm, vary, or altogether change an intention, expressed in the body of the will.” In the argument of this cause, great stress has been laid on the language of the fourth codicil, as showing that the devise to Mrs. Hitchcock, was in her character of executrix. It does not appear to us to be a just criticism. The devise to Mrs. Hitchcock in the will, is unconnected with her office of — 438 — executrix, and the power conferred on her is such, as does not appertain to that office. The estate both real and personal, is devised and bequeathed to her, “ in trust, with full power, to sell, either at public or private sale, all, or any part thereof, and the proceeds to re-invest,and re-sell,at her discretion, either for the purpose of paying debts and legacies, or for a more advantageous investment,” &c. More comprehensive language than this, to give her the absolute power over the estate, cannot be conceived. She had not only the power to sell in any manner she thought proper, but she might invest the proceeds in other property, and sell again; and this she might do in her discretion, either to pay debts, and legacies, or to make a more advantageous investment for the estate. The design of the different codicils is apparent; they were rendered necessary by changes in the estate of the testator. As he supposed his wealth was increasing, he increased his benefactions; and it is most honorable to his memory, that one of the largest bequests, was to the free school of the city in which he lived, of which he had been the munificent patron, and which almost owed its existence to his bounty. In 1837, foreseeing to some extent the calamity which impended over him, he makes some alterations in the legacies proportionate, to the expected subtraction from his estate. In the last codicil, he declares that he has reviewed the former testamentary papers, and has “no new testament to makeand reaffirms the will, and all the previous codicils. So far as we can judge from the codicils themselves, the principal design in their execution, was, that lands acquired subsequent to the date of the will, should be subject to its control. It is true, in the last codicil, he speaks of his executrix having power to sell real estate, but that he did not intend to circumscribe the power already given, is shown in the next sentence, where he says: “ I again declare my intention, that such power to sell, and convey, shall extend to all lands,” &c. Indeed, it would seem, that if this is not a devise in trust, and not a mere power, it would be difficult by language to create one. Whatever might be the effect of this codicil standing alone, when considered in connection with the will, to which it refers, and of which it is a part, not a doubt can be entertained as to its true intent and meaning — that it was the intention of the testator, to vest — 439 — Mrs. Hitchcock with full power over the estate, both real and and personal, to sell and dispose of the same, as in her discretion she might think proper, without reference to her character of executrix. The devise to her was not for the purpose of sale merely, but, “that it (the estate) should be kept together and held in common (by her) for jher benefit, and that of the children, until they respectively come, of age.” Can it be doubted, that if she had declined to qualify as executrix, it would not in the slightest degree have effected this devise in trust? See the case of Judson v. Gibbons, 5 Wendell, 225, where a devise to “executors hereinafter named,” was held to be a devise in trust to them individually, and not as executors, from the control given to them over the realty, until the youngest child came of age. See also the authorities cited on the brief of the defendant’s counsel, on, this point. We proceed to the consideration of the character of the sale, and conveyance, made by her. It appears that after the death Of Mr. Hitchcock, Mr. Herman Cope, as the agent of the Bank, came to Mobile, to endeavor to make some arrangement in reference to the property of the Bank in that place. That Mr. James Erwin, the brother of Mrs. Hitchcock, represented himself to be her agents and after considerable negotiation, a compromise was effected, by which the Bank was to advance $150,000, for the purpose, ■Us was alledged, of paying the unsecured creditors of Mr. Hitchcock. In consideration of this advance, all defence to the bond and mortgage upon the bill, which had been filed during Mr. Hitchcock’s life, was to be abandoned, and the bill suffered to abate, by omitting to revive it. Mrs. Hitchcock was to convey to trustees for the Bank, all the estate, and interest, she had as devisee in the mortgaged premises — the Bank to be let into the immediate possession, and to relinquish all further claims on Hitchcock’s estate, and take the mortgage property for the debt. The agreement was executed apparently in good faith. The money was paid, and Mrs. Hitchcock executed her deed, in which she recites, that by virtue of the power conferred on her by the will of her husband, and in consideration of the sum of $773,453 23, (the amount of the mortgage debt and interest,) she “acknowledged, remised, released, conveyed. — 440 — and forever quit claimed, unto the trustees of the'Bank, all the estate, right, title, interest, use, trust, property, claim, and demand whatsoever, at law, as well as in equity, in possession, as well as in expectancy, all and singular,” &c., describing the mortgaged property, &c. This is, beyond all doubt, a conveyance of the equity of redemption in the mortgaged property. The legal title was already in the Bank by the forfeiture of the mortgage, and there was nothing upon which the conveyance could operate, if it did not convey the equity of redemption. Such was the intention of the parties to it, as is obvious from the previous negotiations, and such is its legal effect. Mrs. Hitchcock is estopped by the deed, from denying that such was not her intention. The argument urged, that Mr. James Erwin was not her agent, is answered by the deed itself; and if in truth, as alledged, she did not receive the money, it must be charged to her implicit confidence in the agent, whose acts she ratified, by fulfilling ail his engagements in her behalf. That this large sum of money, was paid to Mr. James Erwin, to extinguish the claim which he set up to eight store houses in Mobile, which were covered by the mortgage to the Bank, would be incredible, if it were not, as it is, fully disproved. It is urged, that a trustee cannot “ release” his interest without other operative words of transfer. Conceding this to be the law in the case of a naked trust, the law does not apply to this case. All the estate, whether legal or equitable, which Mr. Hitchcock possessed in the lands, passed, by the wall, to his wife, for the purpose of enabling her to execute the trust; and if she had the power under the will, of disposing of the equity of redemption — a proposition which must be admitted —it passed, by this conveyance. As to the mode by which the transaction should be evidenced, it is apprehended that any assurance, which would convey the fee, would be sufficient for that purpose. It is however stated in 1 Powell on Mortgages, 260, in the note, “ that a mere release indorsed on •the back of the mortgage deed, will be a sufficient assurance, for by that means the equity of redemption, if conveyed to the mortgagee, will become merged and annihilated in the legal estate; and the mortgagee will be seized of the fee sim441 pie, discharged of the mortgage.” He, however, recommends a separate deed, as more appropriate and usual. But this deed is not, technically considered, a mere release. It is a quit clajm deed, conveying all the interest, which, as devisee, Mrs. H. took in the mortgaged premises; and if such an assurance would have been sufficient to convey the equity of redemption, if made by Mr. Hitchcock, in his life, it is sufficient if made by his devisee. The bona fides of this act on the part of the Bank agents, has been attacked, but we think without the least foundation in justice. The facts were, that the title of the land had been brought in question, and perhaps considered doubtful, by the bill filed by Mr. Hitchcock, charging the Bank with usury. To remove this objection, and to get into immediate possession of the mortgaged property, was the inducement to the compromise, for such in truth it was. The charges on this head against the agent of the Bank, are founded on the supposition, that the Bank debt was illegal, and the mortgage invalid; and it is no where alledged, or pretended, that the equity of redemption was worth the price paid for the compromise. It would seem to be in truth, if the money had been fairly applied to its legitimate purpose — the payment of unsecured creditors — a most valuable arrangement for them. It does indeed appear, that some stratagem was to be resorted to, to conceal the transaction from other creditors', which was certainly objectionable, as all artifice is; but we are unable to perceive any thing illegal, or immoral, in the transaction, on the part of the agents of the Bank. It is now ascertained that the debt was not usurious, and the mortgage a valid security; it is therefore impossible that the contract by which the Bank paid $150,000 to quiet their title, and obtain peaceable possession of their own property, could be a fraud on any one. The fact, that the estate of Mr. Hitchcock was declared insolvent after this contract was made, and'executed by the payment of the money, does not affect its validity. In Darrington v. Borland, 8 Porter, 9, the Court say — at page S3 — “ I apprehend that the just construction of this act, (the act of 1S06,) is to make lands liable, no matter how devised, or into whose hands they may pass, unless sold by a decree of the — 442 — Orphans’ Court, or of Chancery; or unless when sold by a trustee, authorized, either expressly, or impliedly, by the will, the sale is bona fide, and the proceeds actually applied to the payment of creditors.” In such a case, the right of the trustee, except so far as be has executed the trust, must yield to the paramount right acquired by the Orphans’ Court, by the decree of insolvency. Here, however, before the decree was made, .the trustee had executed the trust, and received the money; and the subsequent insolvency of the estate, cannot vacate the sale, though it might entitle the administrator to the proceeds, for the purpose of distribution among the creditors. We come now to the consideration of the decree made in the cause by the Chancellor. If no sale of the equity of redemption had been made, the decree would have been a common foreclosure and sale in the ordinary mode, and we are now to inquire, whether the agreement entered into by the agents of the Bank, with Mrs. Hitchcock, authorized the decree made by the Chancellor. Our practice certainly is, not to decree a strict foreclosure; but we think with the Chancellor, that there is no impropriety in such a decree, when the facts of the case warrant it. If the property mortgaged is clearly insufficient to pay the mortgaged debt, we can see no reason why the mortgagee should be put to the expense of a sale, if he is willing to take a strict foreclosure. If the fact be not admittéd, a reference might be made to the master to ascertain its value, and if the question were doubtful, and no consent given, certainly no such decree ought to be made. In this case, although we consider the deed of Mrs. Hitchcock to be a conveyance of the equity of redemption, and that she had power under the will to make the sale, yet under the circumstances of this case, it was clearly competent for the administrator, who, after the estate was declared insolvent, was a necessary party to the bill, as the representative of the creditors, upon the allegation, and proof, either of fraud in the agreement made by the Bank with Mrs. Hitchcock, or that the equity of redemption was worth more than was paid for it, to insist on a sale of the mortgaged premises. No such allegation is made. The effort is to invalidate the bond and mortgage, and no suggestion has been made, that the mortgaged — 443 — premises will more than discharge the debt. Nor is it at all probable that it is adequate for that purpose. No possible good therefore, can result to any one from a sale of the property; but a most unnecessary expense would be incurred by such a course. As therefore, the entire reason for decreeing a sale of mortgaged premises rests upon the interest of the mortgagor, if he has none, and the mortgagee desires a strict foreclosure, we are of. opinion he is entitled to it. For the practice of the English and the American Courts, and the reason on which it is founded, see 2 Story Com. on Equity, 293, and cases cited. In equity, the maxim is, once a mortgage, always a mortgage.' If the parties stipulate, that it shall be redeemable during the life of the parties only, the heir may, notwithstanding, redeem. [Newcomb v. Bonham, 1 Vernon, 7.] So also in a similar case an assignee may redeem... [Pow. on Mort, 118, a, note 1.] In Van Burgon v. De Marest, 4 J. C. 37, Chancellor Kent held, that, although there was a power of salé in the mortgage, as the right to redeem existed, it was proper to file a bill. Although the right of the mortgagee to purchase the equity of redemption-, is .undoubted, yeta Court'of Chancery looks with distrust upon such contracts, from the influence which the incumbrance gives the mortgagor over the mortgagee. [Webb v. Rorke, 2 Sch. & L. 673. See this doctrine fully stated in 1 Powell on Mort. 123, in note.] . Such being the law, we entertain no doubt of the jurisdiction of the Court. The mortgagee had a right to have his title quieted by a decree of the Court, and by bringing all the parties before it, to obtain the judgment of the Court upon his title. The question of dower is not raised upon the bill, nor put in issue, it is not therefore proper'to make any remark in relation to it. , We have .examined all the assignments of error, and believe., that the opinion here pronounced covers them entirely. Let the decree of the Chancellor be affirmed.