This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Balduff v. Griswold, 9 Okla. 43?, 60 Pac. 223; Beebe v. Wisconsin Mortgage Loan Co., 117 Wis. 328, 93 N. W. 1103.
32. Ante, Sec. 605(d).
33. Hughes v. McKenzie, 101 Ala. 415, 13 So. 609; Lamberson v. Bashore, 167 Cal. 387, 139 Pac. 817; Rogers v. Davis, 91 Iowa, 730, 59 N. W. 265; Caprez v. Trover, 96 111. 456; Morton v. Woodford, 13 Ky. L. Rep. 150, 16 S. W. 528; Hill v. Grant, 46 N. Y. 496; Brownlee v. Martin, 28 S. C. 364, 6 S. E. 148; Hubby v. Harris, 68 Tex. 91, 3 S. W. 558; Walker's Adm'r. v. Mason, - (Va.) -, 24 S. E. 231; Watts v. Kellar, 56 Fed. 1.
34. La Cotts v. La Cotts, 109 Ark. 335, 159 S. W. 1111; San Jose Safe-Deposit Bank of Sav
In such a case the transaction is in effecl the same as if the person in behalf of whom the purchase was made had taken the title in his own name and had then made an absolute conveyance to the person advancing the purchase price in order to secure the repaymenl of the loan. So if a redemption from a judicial or sheriff's sale is effected by one person at the request of another interested in the property, the former taking an as-signment of the certificate of purchase or a transfer of the legal title, under an agreement that he is to hold the title as security for the reimbursement of the sums paid to effect the redemption, he is in the position of a mortgagee by absolute deed, this case differing from that previously referred to merely in the fact that the purchase money is advanced after instead of at the time of the sale.35 A like relation of mortgagor and mortgagee may arise in connection with an agreement for the extension of time for redemption from an execution or judicial sale, the purchaser in the meanwhile holding the legal title as security.
(Pa.) 384; Gaines v. Brockerhoff, 136 Pa. 175, 19 Atl. 958; Guinn v. Locke, 1 Head. (Tenn.) 110; Harvey v. Shipe, 78 W. Va. 246, 88 S. E. 830; Liskey v. Snyder, 56 W. Va. 610, 49 N. E. 515; Phelan v. Fitzpatrick, 84 Wis. 240, 54 N. W. 614. To be distinguished is the case of a purchase by a third person with an agreement for resale to the former owner. See Hibernian Banking Ass'n v. Commercial Nat. Bank, 157 111. 524, 41 N. E. 919; Stroup v. Haycock, 56 Iowa, 729, 10 N. W. 257.
35. Nelson v. Kelly, 91 Ala. 569, 8 So. 690; Lounsberry v. Norton, 59 Conn. 170, 22 Atl. 153;
Trogdon v. Trogdon, 164 111. 144. 45 N. E. 575; McElroy v. Allfree, 131 Iowa, 112, 117 Am. St. Rep.
(g) Trust deed to secure debt. Not infrequently, instead of a mortgage in ordinary form, a conveyance is made to a trustee, to secure the payment of a debt due to another person, or to several persons, subject to a condition that it shall be void upon payment of the debt at maturity, and with a power in the trustee to sell the property in case of default. And in a few states a conveyance of this nature is used to the exclusion of a mortgage made directly to the creditor, it being desired to create a power of sale, and it being considered improper that the creditor himself should be vested with such power. A conveyance to a trustee is also used, in all the states, when it is desired to secure an indebtedness to a number of persons, or to persons whose identity is unknown, and it is ordinarily used to secure an issue of bonds by a corporation.
In jurisdictions in which a mortgage in ordinary form has the effect of transferring the legal title, a conveyance to a trustee to secure a debt must necessarily have the same effect.37 In some of the jurisdictions in which a mortgage does not transfer the legal title, a deed of trust of this character is more usually regarded as technically a mortgage, and as consequently not vesting any legal title in the trustee, so called, and this apparently without reference to whether the parties intended that he should have the legal title.38 In others tion.43 Moreover, the debt secured is regarded as the principal thing, and the title or security in the trustee as merely incidental thereto, and as subject to the control of the owner of the indebtedness.44
412, 108 N. W. 116; Hutchings v. Clerk, 225 Mass. 483, 114 N. E. 746; Wilson v. McWilliams, 16 S. D. 96, 91 N. W. 453.
36. Barthell v. Syverson, 54 Iowa, 160, 6 N. W. 178; Penson-ean v. Pulliam, 47 111. 58; Wen-zel v. Weigand, 92 Minn. 152, 99 N W. 633; Robinson v. Lincoln Sav. Bank, 85 Tenn. 363, 3 S. W. 656.
37. Collier v. Alexander, 142 Ala. 422, 38 So. 244; Turner v.
Watkins, 31 Ark. 429; Stephens v. Clay, 17 Colo. 489, 31 Am. St. Rep. 328, 30 Pac. 42; Ware v. Schintz, 190 111. 189, 60 N. E. 67; Benton Land Co. v. Zeitler, 182 Mo. 251, 70 L. R. A. 94, 81 S. W. 193; Dupee v. Rose, 10 Utah, 305, 37 Pac. 567; Chesapeake Beach Ry. Co. v. Washington, P. & C. R. Co., 23 App. Cas. (D. C.) 587, aff'd 199 U. S. 247, 50 L. Ed. 175.
38. Brown v. Bryan, 6 Idaho. 1, 51 Pac. 995; Ingle v. Culbertson, of such jurisdictions, the grantee in the deed is regarded as actually having the legal title, for some purposes at least.39 Occasionally the recognition of the legal title as being in the trustee appears to be based on the assumption that this is necessary to enable him to exercise the power of sale which the instrument undertakes to give him.40
A trust deed thus made for purposes of security will, it seems, be regarded as a mortgage, for the purpose of preserving the grantor's right of redemption, since a mortgagor should not be deprived of this right by the mere form of conveyance which may be adopted,41 and the grantor retains, as does a mortgagor, the substantial ownership of the property,42 he having even, according to several cases, an interest subject to execu43 Iowa, 265; Lenox v. Reed, 12 Kan. 223; Webb v. Hoselton, 4 Neb. 308, 19 Am. Rep. 638; Hurley v. Estes, 6 Neb. 386; Thompson v. Marshall, 21 Ore. 171, 27 Pac. 957; Ladd v. Johnson, 32 Ore. 195, 49 Pac. 756; McVay v. Tousley, 20 S. D. 258, 129 Am. St. Rep. 927, 105 N. W. 932; Wright v. Henderson, 12 Tex. 43; McLane v. Paschal, 47 Tex. 365.