1 See N. Y. R. P. L. §§ 25-29; 49. - Ed.

In this case, as it is in every case of a deed of the fee upon condition subsequent, the grantor parted with every interest and estate in the real property conveyed. That was her intention, within the legal presumption from the terms of the deed, and it was, also, the legal presumption that the condition would be performed by the grantee. That which the grantor retained was never regarded as an interest in real property, or as an assignable chose in action, and cannot be deemed such through any construction of our statute. Until the law is changed by some legislation, it must be regarded as still the settled rule that no one can take advantage of the breach of a condition subsequent, annexed to the grant of a fee, but the grantor or his heirs; or, in the case of an artificial person, its successors. Every estate and interest formerly enjoyed by the grantor were vested by the deed in the grantee. He undertook and agreed to perform the condition which is annexed to the grant, and the presumption was that he would perform. If he, or those who succeeded in interest, failed to do so within a reasonable time, then it became optional with the grantor to enter for a breach of the condition and to have a forfeiture of the estate declared. The grantor having died, the right to insist upon a forfeiture for breach of the condition remained in the heir, as the person who occupies the place of the deceased.

The further point is made by the appellants that if the clause in the deed to Hughes created a condition subsequent, it could not be broken after his death, as there was no mention therein of his heirs, executors or assigns. I do not think, upon reading the whole of the habendum clause in the deed, that we can say that the condition amounted only to a personal covenant with the grantor. The language is, " to have and to hold the . . . premises . unto the said party of the second part, his heirs and assigns, to his and their own proper use, etc., forever, upon the conditions following, to wit: That said party of the second part shall consecrate, or cause to be consecrated, the said property for the purpose of erecting a church building," etc. The intention seems plain that the conveyance of the estate was upon condition, and I do not think that the construction is permitted that it was a mere covenant on the part of the grantee, personal to him. The condition was one which, in its nature, was so annexed to the conveyance by the deed as to qualify it. 2 Wash. Real Prop. *p. 455. The language does not provide that the party of the second part, alone, shall consecrate, but that he shall cause to be consecrated the property, and, therefore, it was within his power, if he did not do so himself, to provide, in any disposition which he made of it, that his successors in interest should do so. They took the estate with knowledge of the condition affecting its title and cannot complain if bound by it. It seems to me that the natural and ordinary interpretation of the habendum clause is to create a condition subsequent, as the effect of which, in case of a failure to perform it, within a reasonable time, on the part of Hughes, or his heirs or assigns, the estate granted might be defeated, at the option of Mrs. Davey, or her heirs. The language of the clause is not merely descriptive of the consideration upon which the deed was given; but qualified the conveyance to the extent, or in the manner named. Considering the purpose of the grant by Mrs. Davey, we could not with reasonableness of construction say that the condition she imposed was merely personal to Archbishop Hughes.

A careful consideration of these questions, and no other require discussion here, must lead us to the conclusion that the appeal cannot be sustained.

Judgment affirmed.

Tryon V. Munson

77 Pennsylvania State, 250. - 1874.

Ejectment by Tryon and others claiming under the heirs of James Wilson, deceased, against Munson and others, claiming the property under and by virtue of a sale on foreclosure of a mortgage given by said Wilson. Judgment below for defendants. Plaintiffs bring error.

Agnew, Ch. J., [after disposing in defendants' favor of several other questions.] - The last question and the most important is, whether the title of the heirs of Judge Wilson was extinguished by the sale? This depends on the view which the law takes of the mortgage, as a mere debt or as an estate in the land. The position of the plaintiff is, that the descriptive lists of the tracts or subject of the mortgage being omitted in recording the mortgage, it is to be viewed as an unrecorded mortgage in its effect upon the estate of the heirs, and that as a debt its lien had expired under the operation of the Act of 1797. Nice's Appeal, 4 P. F. Smith, 200, is referred to. If it be conceded that the mortgage is merely evidence of a debt, and conveys no estate in the land to the mortgagee, it must be admitted that the lien of the debt was gone when this proceeding took place, and that, according to the doctrine of Bailey v. Bowman, 6 W. & S. 118, and other cases, the title of the heirs was not extinguished. We are, therefore, cast upon the decisions in this State to ascertain the nature and effect of a mortgage. That the debt secured by it is personal in its nature and qualities of transmission is undoubted. Ownership of the debt carries with it that of the mortgage; and its assignment or succession in the event of death, vests the right to the mortgage in the assignee or the personal representative of the deceased owner. But there is a manifest difference between the debt, which is a mere chose in action, and the land which secures its payment. Of the former there can be no possession, except that of the writing, which evidences the obligation to pay; but of the latter, the land or pledge, there may be. The debt is intangible, the land tangible. The mortgage passes to the mortgagee the title and right of possession to hold till payment shall be made. He may, therefore, enter at pleasure, and take actual possession - use the land and reap its profits. Now this title or lawful right to possess, and actual pedis possessio, are not ideal or contemplative merely, but are real and tangible. True, the right is conditional, and will cease on payment of the debt; but until the condition is performed, the title and possession are as substantial and real as though they were absolute. The evidence of this is that the mortgagee may dispossess and hold out the mortgagor until he performs the condition, or until the perception of the profits reaches the same result. Thus we perceive an interest or estate in the land itself, capable of enjoyment, and enabling the mortgagee to grasp and hold it actually, and not a mere lien or potentiality, to follow it by legal process and condemn it for payment. The land passes to the mortgagee by the act of the party himself, and needs no legal remedy to enforce the right. But a lien vests no estate, and is a mere incident of the debt, to be enforced by a remedy at law, which may be limited. It is true, if the mortgagee be held out, he may have to resort to ejectment, but this is to avoid a conflict, and the statutory penalties for forcible entry, for otherwise he may take peaceable possession, and is not liable as a trespasser. The difference between title by deed, and a lien by law, is clear, and hence the former is not governed by the rules which apply to the latter. The title by deed, which is good against the mortgagor, is necessarily good against the heirs, who are mere volunteers, and take the place of the ancestor. But a lien by law is a mere incident to the debt, which may be limited by the law in its recovery from a descended estate. In the former case, death makes no change in the title conveyed; in the latter, it brings into operation a law specially applicable to the descended estate. That these are the principles governing the law of mortgage is evidenced by numerous decisions. Thus in Levine v. Will, I Dallas, 430, it was held that the Act of 28th of May, 1715, enacting that no mortgage or defeasible deed shall be good or sufficient to convey or pass a freehold of inheritance or less estate, unless it be acknowledged, proved and recorded within six months, does not avoid an unrecorded mortgage as against the mortgagor. C. J. McKean said: "We think it is sufficient against John Levine (the mortgagor) that the deed so far is sufficient to pass the lands, and that under it the possession of the premises might be recovered in ejectment." As to the right to maintain ejectment, and that the remedy by scire facias is not exclusive, see also Smith v. Shuler, 12 S. & R. 240; Fluck v. Replogle, 1 Harris, 405; and Martin v. Jackson, 3 Casey, 504. A mortgage acknowledged before and recorded by officers whose commissions had become void by the Declaration of Independence, was held to be good against a subsequent judgment-creditor and purchaser at sheriff's sale, who had notice. Parker v. Wood, 1 Dallas, 436. So a scire facias on a mortgage not recorded according to law, was held to be good against a purchaser with notice Stroud v. Lockart, 4 Dallas, 153. In Semple v. Burd, 7 S. & R. 291, Judge Duncan gives the true reason why an unrecorded mortgage is good against the mortgagor, because, he said, "it injured no one, affected not the rights of any third person, and was binding on the man who executed it as a mortgage." That an estate passes by a mortgage which descends to the heir, is distinctly asserted in Simpson's Lessee v. Ammons, I Binn. 175. " As to the second point," says C. J. Tilghman, "the legal estate in the two-thirds, conveyed to Marshall (the mortgagee), descended on his death to his heirs; but the mortgage being in effect only a security for a debt due to the estate of Marshall, his heirs were trustees for the benefit of the administrators, who were entitled to the debt. It was determined in Kennedy v. Fury, 1 Dallas, 72, that a certain cestui que trust may support an ejectment in his own name." This case also explains the theory of the action of the personal representative, which, as the Chief Justice states, is founded on the want of a court of chancery in this State. The Manufacturers' and Mechanics' Bank v. Bank of Pennsylvania, 7 W. & S. 335, affords another illustration of the character of a mortgage as an estate. There the mortgage was imperfectly recorded, and was not good as a lien against subsequent judgment-creditors, but it was' held good as against a second mortgagee, with notice of it, whose lien was prior to the judgments, and the money was therefore awarded to the first mortgagee. Another test is found in Scott v. Fields, 7 Watts, 360, in which it was decided an action of debt will not lie on a mortgage containing no express covenant to pay the debt. In Philips v. The Bank of Lewistown, 6 Harris, 394, Justice Lewis treats both the mortgage and assignment of it as formal conveyances of the land. Judge Strong states the principles governing mortgages more at large and very clearly. Brittons Appeal, 9 Wright, 172. He says " that mortgages are sales, and that they must be, therefore, within this doctrine, is shown by many cases. Mortgagees are purchasers as between each other; i. e., a subsequent mortgage recorded is postponed to a prior mortgage unrecorded, of which the second mortgagee had notice. They are purchasers as against subsequent purchasers absolutely, with notice. They are purchasers under powers to sell. They are within the recording acts as to assignments of the same security to different parties. They are in form defeasible sales, and in substance grants of specific security, or interests in land for the purpose of security. Ejectment may be maintained by a mortgagee, or he may hold possession on the footing of ownership, with all its incidents. And though it is often decided to be a security or lien, yet so far as it is necessary to render it effective as a security, there is always a recognition of the fact that it is a transfer of the title." Mortgagees, he observes, have rights both as grantees and lien-holders; and their rights as grantees are not forbidden by the Act of 1820, which touches the lien only, and not the estate. The same key unlocks the question before us. The lien of the debt, under the Act of 1797, was gone against the general estate of Judge Wilson; but the special estate, granted by him in the mortgage, remained and preserved the debt against it. This effect might be seen in the case of a mortgagee in possession at the death of a mortgagor. Clearly, the lapse of time would not oust him, if his debt were unpaid. He could hold the land until the heirs tendered payment, or his debt was made out of the profits. The proceeding by scire facias against the administrators was valid, and the judgment being before the Act of 1834, bound the heirs. Probably the case would be different since the passage of that act, and the heirs would be permitted to make the same defense to the ejectment which they might have set up to the scire facias, if they had been served. Wallace v. Blair, 1 Grant, 75; Murphy s Appeal, 8 W. & S. 165; Benner v. Phillips, 9 W. & S. 13; Atherton v. Atherton, 2 Barr. 112. Even an irregularity in the proceeding, as a judgment upon one return of nihil, has been held not to affect the purchaser at the sheriff's sale. The effect of the sale is to transfer the estate to the purchaser as fully as it existed in the mortgagor at the time of the mortgage. Hartman v. Ogborn, 4 P. F. Smith, 120. The sale in this case, therefore, extinguished the title of the heirs, notwithstanding the great lapse of time from the death of Judge Wilson until the proceeding upon the mortgages. If the heirs had a defense they ought to have gone into court and asked the judgment to be opened to let them into a defense. The judgment was final, and bars any defense which existed before it was rendered. Though the jurisdiction of the court may not be denied, as we have seen, because of an omission of part of the instrument in recording it, it may be conceded that the omission of a material part, necessary to identify the subject-matter, will reduce the whole instrument to the condition of an unrecorded mortgage in its effect upon the estate of the heirs. In this view, Nice's Appeal, 4 P. F. Smith, 200, is relied on by the plaintiffs in support of their position. But that case concedes the effect of an unrecorded mortgage upon the estate as against the mortgagor and his heirs, and only denies to it a higher place as against creditors than that of a specialty debt, in a distribution proceeding, after a conversion of the property through an Orphans' Court sale. It is there shown that to allow it precedence over the general debts of a decedent, which are fixed in position by law at death, would disturb the harmony of the system relating to the estates of decedents and the payment of the debts. In this case, the simple question is, whether the mortgage, considering it as unrecorded, could be enforced against the heirs of James Wilson? After a full consideration of the assignments of error, we find none which ought to reverse the judgment.