Miller v. Hamblet

The opinion of the court was drawn up by Redfied, J. It is not necessary to inquire how far the [500] present case is one of an equitable mortgage. Doubtless it would be so considered in a court of equity. But whether it can be so far regarded in that light, at law, as to allow the defendant, in an action of ejectment, time to redeem, and thus, upon failure, foreclose his equity, must be determined upon the statute giving courts of law that power. The words of the act are “ that in all cases brought to recover on the forfeiture of real estate, granted upon condition, by deed of mortgage, or bargain and sale, toith defeasance,” &c., this power shall exist. We think it manifest, from the terms of the statute, that the court have no such power given them at law, unless the conveyance was a technical moYtgage, either by way of conveyance to be void on condition, or with defeasance under seal. That is not the present case. We think, therefore, the motion was correctly overruled, by the county court, and their judgment is affirmed.