Hicks, that the same were the mortgage deeds and bond to secure the principal sums of £2927 and £30,000 and interest due

to him from * Sir Edwin Bayntun Sandys, and he was [* 503] reminded by Hicks of what had passed in the morning, and informed that the gift would be unavailing, unless he confirmed it by passing the deeds: and Hicks then proposed, with his permission, to hand over the deeds to his daughter, whereupon he signified his assent by an inclination of his head. The mortgage deeds and bond were then, in the presence and under the eye and observation of George Elwes, handed by Hicks across the bed in which the testator then lay, to the appellant Emily Frances Duffield, and were received by the appellant Emily Frances Duffield, in her hands; and as soon as she had received the mortgage deeds and bond in her hands, George Elwes immediately took hold of her hands, which then contained the deeds and bond, and with both his hands pressed together the hands so holding the deeds and bond, and showed evident marks of satisfaction. During the whole of this transaction, George Elwes, according to the depositions in the cause and the judgment of the witnesses, although he was unable to write or speak, was in a state of mind competent to dispose of his property, and was aware of what he was doing, and that he was thereby making a gift to the appellant Emily Frances Duffield, of the benefit of the bond and mortgages.

On the 2nd of September, 1821, George Elwes died, leaving the respondent Amelia Maria Hicks, then Amelia Maria Elwes, his widow, and the appellant Emily Frances Duffield, his daughter and only child and heir-at-law, and heir according to the custom of the manors whereof his copyhold estates were holden, and also his sole next of kin.

The appellants had, at the death of George Elwes, * five [* 504] children namely, the respondent George Thomas Warren Hastings Duffield, their only son, an infant, and four daughters, infants, namely, the respondents, Caroline Duffield, Maria Duffield, Anna Duffield, and Susan Eliza Duffield.

After the death of George Elwes, the respondent, Abraham Henry Chambers, one of the executors named in his will, and the respondent William Hicks, appointed executor by the codicil, proved his will, and codicil in the Prerogative Court of the Archbishop of Canterbury.

On the 1st of October, 1821, the appellants exhibited their

No. 2. Duffield v. Elwes, 1 Bligh N. S. 504, 505.

original bill of complaint in the Court of Chancery (which was afterwards amended), against the respondent Amelia Maria Hicks, by her then name and description of Amelia Maria Elwes, widow, the respondents Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duffield and Susan Eliza Duffield, and others, as defendants, which, among other things stated the substance of the facts before mentioned, and prayed (among other things) that the donatio mortis causâ to the appellant Emily Frances Duffield, of the bond and mortgage securities might be established, and that the appellant Emily Frances Duffield, or the appellants in her right, might be declared entitled to the bond and mortgage deeds and to the monies secured thereby, and to all benefit thereof, and that the respondents Abraham Henry Chambers and William Hicks, as executors and trustees of the testator, might be decreed to execute proper instruments to enable the appellant Emily Frances

Duffield, or the appellants in her right, to receive the monies [*505] due and to become due on the bond and mortgages respec

tively, and to obtain the full benefit of the securities; and that the appellants, in her right, might be at liberty to sue in the name of the last named respondents in any action or suit to be brought against the obligor in the bond, and the mortgagor in the mortgages, the appellants thereby offering to idemnify the respondents against all the costs of such action or suit; and that the will and codicil of George Elwes might be established, and the trusts thereof executed, etc.

The adult defendants to the original and amended bill appeared, and put in their answers supporting the claims of the plaintiffs as to the donatio mortis causâ. The infant defendants submitted their rights to the care of the Court.

Witnesses were examined in support of the allegations of the bill, and the cause, being at issue, was heard before the VICECHANCELLOR on the 17th of April, 1823, when a decree was made by which (among other things) it was declared, that the Court, being of the opinion that a mortgage security cannot by law be given by way of donatio mortis causâ, the appellant Emily Frances Duffield was not entitled to the mortgage monies secured by the indentures (of mortgage) and the bond.

In 1824, the widow of George Elwes married the respondent William Hicks, in consequence of which marriage there was a

No. 2. Duffield v. Elwes, 1 Bligh N S. 505-507.

supplemental suit and a decree in August 1824, to carry on the proceedings.

The declaration of the decree in the original suit, as to the donatio mortis causâ, was the subject of the present appeal. For the appellants.

*

Mr. Sugden. The fact of the gifts was not much ques- [* 506] tioned in the Court below; the argument was upon the question of law, whether money secured upon a mortgage can be the subject of a donatio mortis causâ. That the delivery of a bond on death-bed operates as a gift of the money secured by the bond, has been decided in Gardner v. Parker, 3 Madd. 184 (18 R. R. 213), following Snelgrove v. Bailey, 3 Atk. 214, where Lord Hardwicke puts the case of an equitable interest in a chattel in possession with a legal title outstanding in a trustee, and says that the gift of the chattel would be valid as a donatio mortis causa. At law a bond cannot be assigned. In the hands of a third party, it can only be made effectual by a power of attorney to sue in the name of the obligee. By the mere delivery of the bond nothing passes but the parchment. But it may operate as a gift of the money, and vest in the donee a right to use the name of the donor, or his representative, as if a power of attorney had been given to enforce the payment of the money. This is the principle of decision in Gardner v. Parker, and Snelgrove v. Bailey. If a sum of money is secured by bond and mortgage, the money secured is personal property. The real estate is simply a security for payment of the money. That the payment is secured by a mortgage as well as a bond cannot alter the state of the question.

If there is a gift inter vivos of money secured by mortgage, the giver (mortgagee) becomes a trustee of the bond by which the debt is secured for the benefit of the donee. If the gift is by will, the heir of the testator becomes a trustee. The Statute of Frauds is out

of the question; for it is a gift of the money secured, and not of the land by which it is secured. The debt is the [* 507] principal subject, and the real estate being a mere security for the debt, passes as an adjunct to the principal.

The question was agitated in Hassel v. Tynte, Ambl. 318, but not decided. Lord HARDWICKE thought the money was the principal, but that there was an interest in land. In the Duchess of Buccleugh v. Hoare, 4 Madd. 467, it was held upon a gift of heritable bonds, that the heir was a trustee of the land for the VOL. IX-53

legatee, and that the money secured passed as part of the personal

estate.

The case of Hurst v. Beach, 5 Madd. 351 (21 R. R. 304), is not in principle distinguishable from the present case. A gift by the mortgagee to the mortgagor of the money secured was there held good, although secured by real estate, which could not pass without a reconveyance.

The case as to the mortgage for £2927, is more clear, the money being secured by bond as well as mortgage. Suppose the bond alone had been delivered; the money would have passed by the delivery, and the heir of the donor would have been a trustee of the land in mortgage for the donee. The deeds of an estate are a subject of property. The estate will not pass by the mere delivery of the deeds; but having been given they cannot be recovered. In Snelgrove v. Bailey, Lord HARDWICKE considered that the money secured passed by the delivery. There was no bond for the £30,000, but the money was secured by an assignment of the debt, by a conveyance of the land, and by a covenant to pay the money. The assignment of the debt existing, and the delivery of the deed of

the

assignment, operates as a gift of the money assigned. In [* 508] the case of a bond assigned, the assignee may pass money by delivery of the assignment.

The effect of these nice distinctions is to increase litigation, because no advice can be given in such a state of the law. There is no solid distinction in this respect between a bond and a covenant. The money passed by the delivery in both cases, because they are securities for money, and capable of assignment. The remedy is the same, and the circumstance that there is an additional security by a mortgage of real estate cannot alter the nature of the gift or the remedy; money secured by mortgage may be given by a will without witness; so when there is an existing agreement, the mere delivery of deeds operates as a mortgage. These cases must be considered as excepted out of the Statute of Frauds; other wise Courts of equity have assumed a power of legislation. Where this depends on contract, the relief goes to the extremity of the jurisdiction. The decisions rest not merely on the ground of contract, but because the act of gift is plain and unequivocal. In this case, how in principle can it affect the right under the inferior securities, that there is also a security of a higher nature?

Mr. Longley. A mortgage, though in fee and forfeited, still

continues, in equity, a mere security for money, and belongs to the personal estate of the mortgagee; while the estate in the land remains in equity, and to many purposes at law, in the mortgagor. Pawlett v. Attorney-General, Hardr. 469; Thornborough v. Baker, 1 Ch. Ca. 283, and from Lord NOTTINGHAM's notes in 3 Swanston 628; Noy v. Ellis, Ch. Ca. 220; Ellis v. Gravas, 2 Ch. Ca. 50; Cope v. Cope, 2 Salk. 449; Howell v. Price, 1 P. Wms. 294.

*In Chester v. Chester, 3 P. Wms. 62, Lord Chancellor [* 509] KING observes, "An estate, though mortgaged, continues still to be the estate of the mortgagor, subject to the payment of the pledge which is upon it; and the mortgagee's right is only to the money due upon the land, not to the land itself." King v. King, 3 P. Wms. 361; Galton v. Hancock, 2 Atk. 424, 435.

In Martin v. Mowlin, 2 Burr. 969, 978, Lord MANSFIELD says, "A mortgage is a charge upon the lands, and whatever would give the money will carry the estate in the land along with it to every purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts; it will go to executors; it will pass by a will not made and executed with the solemnities required by the Statute of Frauds. The assignment of the debt, or forgiving it, will draw the land after it as a consequence. Nay it would do it though the debt were forgiven only by parol; for the right to the land would follow, notwithstanding the Statute of Frauds." Earl of Tankerville v. Fawcett, 1 Cox's Rep. 237, 239.

In Silberschildt v. Schiott, 3 Ves. & B. 49, Sir WILLIAM GRANT, M.R., says, "If the testator's interest had been really a mortgage, there is no doubt a gift of the money would have carried his interest in the land upon which it was secured."

In Lord Cholmondeley v. Lord Clinton, 2 Jac. & W. 179, Sir THOMAS PLUMER, M. R., says, "In the hands of the mortgagee, the mortgage is considered in equity as a mere personal chattel which passes to the executor."

* On the other hand, the equity of redemption con- [* 510] stitutes the estate in the land. It is not merely a trust -it is a title in equity. Hardr. 467. It is of such consideration in the eye of the law, that the law takes notice of it and makes it assignable and devisable, Hardr. 469, as Lord HARDWICKE held in Casburne v. Scarfe, 2 Jac. & W. 194. An equity of redemption is so completely the estate in the land, or rather the land itself,