Among the contracts which come before courts having equitable jurisdiction, for relief, are those which are familiarly known as trust mortgages, (s) Although this name is commonly given to them both within and without the legal profession, and sometimes by courts, (t) we cannot regard them as mortgages, but as trusts created to be substitutes for mortgages, and to accomplish the principal purpose of a mortgage, by means better suited, than a mortgage would be, to the wishes of the parties or the circumstances of the case.

(s) This subject is fully treated in 1 Washburn, Real Property, 2d ed. p. 531.

(t) Sargent v. Howe, 21 111. 149; Woodruff v. Robb, 19 Ohio, 212; Hannah v. Carrington, 18 Ark. 85.

What are called trust mortgages exist sometimes between individual parties. If a borrower is willing to give to the lender, or a debtor to the creditor, the security of his real estate or other property, but is, for any reason, unwilling to give to the lender or creditor the title to, and management of, the property, he transfers it to a third party to hold in trust The deed, or a connected document, declares and defines the trusts. Usually they are to hold the property, and reconvey the same to the original owner, if he pays the debt, or performs the agreement, to secure which the instrument is made; if he fails to do this, the trustee is to sell the property, and pay over to the creditor whatever part of the proceeds may be needed to pay what is due to him. And the time and method of sale, and the application of the proceeds, are specified, and sometimes with much minuteness.

A more important use to which these contracts are applied is that of securing the debts or bonds of a corporation (a railroad * company, for example); and, for this purpose, the property, real and personal, and the franchise of the company, are conveyed to trustees, to be held and applied as security for the debts or bonds of the company; and these debts or bonds may be either then existing, or to exist in future, (u)

It may be said that there are two essentials of a mortgage, -one, the equity of redemption in the mortgagor, which is subject to attachment or levy by a creditor; the other is the power of foreclosing by peaceable possession, for breach, or by a suit at law. In the contract we are considering, there is, undoubtedly, in the original transferrer, a valuable interest, which may be called a right of redemption; and it is this which is transferred to a second set of trustees, and sometimes again to a third set, to secure a second or a third set of creditors. Then these transfers would be commonly called first, second, and third mortgages. But it has been distinctly held, that the original owner has no equity of redemption which is liable to attachment or execution, (v)

As to the foreclosure, the authorized sale is intended to operate, to some extent, as a foreclosure. But it is also distinctly held, that while a court of equity will enforce this sale, in accordance with the terms of the trust, and have power to do this by virtue of their equity jurisdiction in cases of trust, even in States where they have no power to decree sales under mortgages, (w) they have no power to depart, in the sale or the manner of it, from the specified terms of the contract; and there does not belong to this contract any right or power of foreclosure whatever, at law or in equity, other than that springing from its terms, (x)

(u) Ashhunt v. Montour Iron Co. 35 Pa. 30.

(v) Pettit v. Johnson, 15 Ark. 55; Mo-Intyre c. Agricultural Bank, 1 Freem. Ch. 105; Moms v. Way, 16 Ohio, 469.

It has been said, that if the trust for the benefit of a creditor must be executed by a third person, and cannot be by the creditor, * it is a trust, and not a mortgage, but is a mortgage if the creditor himself can execute the trust, (y)

The trustee may make the sale under the terms of the trust, without an order of court; if he refuses to do so, the court may order it done, (z) And if one or more trustees die or resign before the trust is executed, the trust survives, and the surviving trustees may execute it. (a)

These contracts, although of comparatively recent introduction, have already passed repeatedly under equity adjudication. The courts regard them as trusts, and exercise, in relation to them, whatever equity powers they have in cases of trust. If the trustee accepts and holds the property, he is held as trustee, although he does not sign the deed. The trust does not, however, exist between the debtor and the creditors, but between the debtor and his transferee in trust; and then between this transferee, thus made trustee, and the creditors for whose benefit the transfer was made, (b)

We are willing to accept the common name of trust mortgages, as sufficiently accurate for use; because we regard it as an abbreviated form of " trusts in substitution of mortgages."

(w) Koch v. Briggs, 14 Cal. 256; Bradley v. Chester Valley R. R. Co. 36 Pa. 141, Sampson v. Pattison, 1 Hare, 533; Reece v. Allen, 5 Gilm. 236; Newman v. Jackson, 12 Wheat. 572; Brisbane v. Stoughton, 17 Ohio, 482; Brown v. Bar-tee, 10 Sm. & M. 275; Marvin p. Tits-worth, 10 Wis. 320; Pettit v. Johnson, supra.

(x) Ash buret v Montour Iron Co. iupra; Koch v. Briggs, supra; Wilson v. Russell, 13 Md. 494; Bradley v. Chester Valley Co. supra.

(y) Marvin v. Titsworth, supra

(z) Bradley v. Chester Valley R. R. Co. supra; Leffler v. Armstrong, 4 la. 482.

(a) Hannah v. Carrington, supra; Peter

Beverley, 10 Peters, 565; Franklin v. Osgood, 14 Johns. 527.

(b) Wilson v. Russell, Koch v. Briggs, Bradley v. Chester Valley R. R. Co., Ashhnrst v. Montour Co., all cited in previous notes to this section.