This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Farrar v. Farrar, Tomson v. Ward, and Mallory v. Stodder, just cited. See also Trull v. Skinner, 17 Pick. (Mass.) 213; where cancelling a deed of defeasance by agreement was held to make the estate absolute in the mortgagee Also Sherburne v. Fuller, 5 Mass 133.
2 Trull v. Skinner, 17 Pick. (Mass.) 213; and Marshall v. Fisk, 6 Mass. 24; Hall v. McDuff, 24 Me. 311.
3 Commonwealth v. Dudley, 10 Mass. 403. See a note to this case, in which the decision is criticised, and many authorities collected. See also Steel v. Steel, 4 Allen, 417; Lawrence v. Stratton, 6 Cush. 163; Howe v. Wilder, 11 Gray, 267.
4 Trull v. Skinner, 17 Pick. 215.
5 Mussey v. Holt, 24 N. H. 252. Also Farrar v. Farrar, 4 N. H. 191.
§ 62. There is one mode of conveying an interest in lands without writing, which is firmly established in the English law by a series of decisions beginning with Russel v. Russel,4 in 1783, and that is by equitable mortgage arising on the deposit of title-deeds. The rule in such cases is stated to be, that when a debtor deposits his title-deeds with a creditor, as security for an antecedent debt or upon a fresh loan of money, it is a valid agreement for a mortgage between the parties, and is not within the operation of the Statute of Frauds.5 The primary intention must be to execute an immediate pledge, and thereupon an engagement is implied to do whatever may be necessary to render the pledge available. Accordingly, a deposit of the title-deeds for the simple purpose of having a mortgage drawn, and in the absence of any indebtedness on the part of the depositor, would not raise an equitable mortgage; but if there were a debt then or previously incurred, the deposit would create an equitable mortgage, though there should not be a word spoken between the parties at the time.1 The lien thus created will be extended to cover future advances, if an intention to do so is made out by evidence;2 and, though the deposit be made for a particular purpose, it seems that that purpose may be enlarged by subsequent agreement, without involving the necessity of actual redelivery.3 Where, however, the parties accompany the deposit by a written memorandum to explain its purpose, parol evidence will not be admitted to show any other intention. Indeed, in the absence of any written memorandum, a mere deposit will never create an equitable mortgage as against strangers, except when it can be accounted for in no other way, or the holder is a stranger to the title and the lands;4 and the delivery of such a memorandum to the creditor will not supply the place of the actual deposit of the title-deeds with him.5 But when the party creating the charge has only a partial interest in the property charged, or for some other reason is not in a situation to deposit the deeds, a memorandum, showing an intention to create an equitable mortgage, may be sufficient.6 The deposit of the deeds may be with some person on behalf of the creditor, and over whom the depositor has no control, provided the purpose of the deposit be proved; a deposit with the mortgagor's own wife has been held insufficient; but a deposit with his solicitor may be good.1 A mere verbal statement by the owner of the property to the alleged mortgagee, that he holds the deeds for the mortgagee, will not suffice to create an equitable mortgage.2 § 62 a. It was for some time doubtful whether a deposit of part only of the title-deeds of an estate would be a sufficient deposit to create an equitable mortgage. In the case of Wetherell, ex parte, it was held that a deposit of part of the deeds, together with a written statement that the whole was deposited, was sufficient evidence to raise the presumption of an equitable mortgage.3 In Pearse, ex parte, on the other hand, a part deposit alone was held insufficient.4 The next case, Arkwright, ex parte, followed the doctrine of Wetherell, ex parte, although the only title-deed deposited was a paid-off mortgage.6 In Chippendale, ex parte, there was a deposit of part of the deeds, but no writing; yet the court held that, in the absence of evidence to the contrary, this would make an equitable mortgage;6 and it seems now well settled that an equitable mortgage may be created, though a part only of the title-deeds be deposited.7 A somewhat similar question arises where it is intended to obtain advances upon several estates, but the deeds of a part only are deposited. Thus, in Jones v. Williams, deeds of some of the estates were deposited, and with them a statement that they were the deeds of all. It was held by Romilly, M. R., that, although the parties making the advances were deceived, and firmly believed that they had the deeds of all the estates, equitable mortgages were created only upon those the deeds of which were actually deposited. "To treat it as an actual charge on the property not included in any of the deeds, would be giving a greater extent than would be possible to the doctrine of equitable deposits."1 So it has been held that an agreement to deposit a deed of title not now in existence does not make an equitable mortgage.2
1 Bank v. Eastman, 44 N. H. 438. 2 Tomson o. Ward, 1 N. H. 9. 3 Mallory v. Stodder, 6 Ala. 801.
4 Russel v. Russel, 1 Bro. Ch. 269. See cases referred to in other notes to this section.
5 2 Story Eq. Jur. § 1020.
1 Norris v. Wilkinson, 12 Ves. 192; Keys v. Williams, 3 Young & C. 55; Hockley v. Bantock, 1 Russ. 141; Brizick v. Manners, 9 Mod. 284; Hooper, ex parte, 19 Ves. 177; Pain v. Smith, 2 Myl. & K. 417.
2 Whitworth v. Gaugain, 3 Hare, 416; Langston, ex parte, 17 Ves. 228. But see Hooper, ex parte, 19 Ves. 477.
3 Kensington, ex parte, 2 Ves. & B. 79; Nettleship, ex parte, 2 M. D. & De G. 124.
4 Coote on Mortgages, 217; Bozon v. Williams, 3 Young & J. 150; Allen v. Knight, 5 Hare, 272; Hooper, ex parte, 19 Ves. 477.
5 Coming, ex parte, 9 Ves. 115.
6 Sheffield Union Co., ex parte, 13 L. T. s. s. 477; Smith, ex parte, 2 M. D. & De G. 587; Daw v. Terrell, 33 Beav. 218; Miller, Equitable Mortgages, 24.