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 .
39. Sacramento Bank v. Alcorn, 121 Cal. 379, 53 Pac. 813; MacLeod v. Moran, 153 Cal. 97, 94 Pac. 604; Stephens v. Clay, 17 Colo. 489, 31 Am. St. Rep. 328, 30 Pac. 43; Soutter v. Miller, 15 Fla. 625; Devin v. Hendershott, 32 Iowa, 192 (semble); Johnson v. Johnson, 27 S. C. 309, 13 Am. St. Rep. 636, 3 S. E. 606 (dictum); Brinkman v. Jones, 44 Wis. 498; Wisconsin Cent. R. Co. v. Wisconsin River Land Co., 71 Wis. 94, 36 N. W. 837.
40. Koch v. Briggs, 14 Cal. 256, 73 Am. Dec. 651; Bateman v.
Burr, 57 Cal. 480; Stephens v. Clay, 17 Colo. 489, 30 Pac. 43; Holmquist v. Gilbert, 41 Colo. 113, 92 Pac. 232. So it is stated that title does not pass if there is no power of sale. Driskill v. Rebbe, 22 S. D. 242, 117 N. W. 135.
41. Eaton v. Whiting, 3 Pick. (Mass.) 484; Turner v. Watkins. 31 Ark. 429; Coe v. Johnson. 18 Ind. 218; Ingle v. Culbertson, 43 Iowa, 265; Bell v. Carter, 17 Beav. 11; Locking -v. Parker, L. R. 8 Ch. 30.
42. Sacramento Bank v. Alcorn. 121 Cal. 379, 53 Pac. 813; Flint & P. M. Ry. Co. v. Auditor General, 41 Mich. 635, 2 N. W. 835; Benton Land Co. v. Zeitler, 182 Mo. 251. 70 L. R. A. 94, 81 S. W. 193; Wood v. Grayson, 22 App. Cas. (D. C.) 432, 445; In re Jersey Island Packing Co., 138 Fed. 625; National Bank of Columbus v. Tennessee Coal, Iron & Railroad Co., 62 Ohio, St. 564, 57 N. E. 450.
Other purposes for which a deed of trust made to secure an obligation has been regarded as equivalent to a mortgage may be mentioned as follows: It has been decided that a corporation authorized to make or to take a mortgage may make or take a deed of trust to secure debts,45 and that a guardian empowered to mortgage may make a deed of trust, this being the recognized mode in that community of securing debts.46 Likewise such a deed of trust has been regarded as a mortgage within a statute providing for the recording of mortgages,47 a statute providing for the release of a mortgage on the margin of the record,48 a statute authorizing redemption after sale under a mortgage,49 and a state insolvent law invalidating an unrecorded mortgage.50 And it has been held capable of foreclosure in equity as a mortgage without resort to the power of sale expressly given.51 But in some cases a distinction has been recognized between a deed of trust to secure and a mortgage. For instance, such a deed has in one state been held not to be a mortgage within a statute requiring an affidavit as to the sum secured,52 or within a statute as to the record of mortgages,53 and while it has more usually been regarded as within a statute as to the mode of foreclosing a mortgage,54 in one state a different view has been taken.55 And even in states where a mortgagee is ordinarily entitled to a strict foreclosure,56 the language of the deed of trust may be such as to confine the trustee to a foreclosure by sale.57
43. Turner v. Watkins, 31 Ark. 429; Pool v. Glover, 2 Ired. L. (24 N. C.) 129; Martin v. Alter, 42 Ohio St. 94; Wright v. Hender-son, 12 Tex. 43.
44. Clark v. Wilson, 53 Miss. 129; Sargent v. Howe, 21 111. 148; Collier v. Alexander, 142 Ala. 422, 38 So. 244. See Foot v. Burr, 4i Colo. 192, 13 L. R. A. (N. S.) 1210, 92. Pac. 236.
45. Wright v. Bundy, 11 Ind. 398; Bennett v. Union Bank, 5 Humph. (Tenn.) 612.
46. Middletown v. Parke, 3 App. Cas. (D. C.) 149.
47. Wood v. Lake, 62 Ala. 489; Cross v. Fomhey, 54 Ark. 179, 15 S. W. 461; National Bank of Columbus v Tennessee Coal, Iron & Railroad Co., 62 Ohio St. 564, 57 N. E. 450; Woodruff v. Robb, 19 Ohio, 212; Barth v. Deuel, 11 Colo. 503, 19 Pac. 471. Contra, Stan-sbope v. Dodge, 52 Md. 483.
48. Wolfe v. Dowell, 13 Smedes & M. (Miss.) 103.
49. Fitch v. Weatherbee, 110 111. 475.
50. Harriman v. Woburn Elec. Light Co., 163 Mass. 85, 39 N. E. 1004.
51. Dupee v. Rose, 10 Utah, 305. 37 Pac. 567; Denver Brick & Manufacturing Co. v. McAllister, 6 Colo. 261; Blackwell v. Barnett, 52 Tex. 326.
In a number of cases the courts have referred to the fact that the conveyance in trust provides that it shall be void if the debt is paid at maturity as conclusive, or approximately conclusive, that the instrument is to be regarded as a mortgage,58 occasionally also asserting that the absence of such a provision precludes it from being so regarded.59 Why such weight should be attached to the presence or absence of a provision of this character is by no means clear. In England at the present day the condition of a mortgage is usually, not that it shall be void upon payment of the debt, but that the mortgagee shall thereupon reconvey the prop52. Charles v. Clagett, 3 Md. 82. Nor within a statute fixing the place of sale under a mort gage. Bank of Commerce v. Lana-han, 45 Md. 483.
53. Stanhope v. Dodge, 52 Md. 483.
54. Lawrence v. Farmer's Loan & Tr. Co., 13 N. Y. 200; Shillaber v. Robinson, 97 U. S. 68, 24 L. Ed. 967; Brown v. Bryan, 6 Idaho, 1, 51 Pac. 995; Thompson v. Marshall, 21 Ore. 171, 27 Pac. 957; Langmaack v. Keith, 19 S. D. 351. 103 N. W. 210.
55. Koch v. Briggs, 14 Cal. 256. 73 Am. Dec. 651; Grant v. Burr, 54
56 Post, Sec.Sec. 650- 652.
57. Locking v. Parker, L. R. 8 Ch. 30; Shepard v. Richardson, 145 Mass. 32, 11 N. E. 738.
58. Turner v. Watkins, 31 Ark. 429; De Wolff v. Sprague Mfg. Co., 49 Conn. 283; Shaw v. Norfolk County R. Co., 5 Gray (Mass.) 162, 181; Martin v. Alter, 42 Ohio St. 94; Austin v. Sprague Mfg. Co , 14 R. I. 453; Wisconsin Cent. R. Co. v. Wisconsin River Land Co., 71 Wis. 94, 36 N. W. 837.
59. Martin v. Alter, 42 Ohio St. 94; Lance's Appeal, 112 Pa. St. 456, 4 Atl. 375.
Erty, and it has never been suggested that the substitution of the latter form of provision for the former affects in any way the character of the instrument as a mortgage. After the payment of the debt the mortgagee holds the property in trust for the mortgagor, just as one to whom a deed of trust is made to secure a debt holds, after such payment, in trust for the creator of the trust.60