No. 2.-Duffield v. Elwes, 1 Bligh N. 8. 524–526.

for he says in Ward v. Turner, "If I went too far in Snellgrove v. Bailey, it is not a reason I should go further, and I choose to stop there."

But there is a great difference between a bond and a [* 525] mortgage debt. If a scrivener be entrusted with * the custody of a bond, and he receive the principal, and deliver up the bond, being entrusted with the security itself; it shall be presumed that he is entrusted with a power over it, and with a power to receive the principal and interest; and the rather, because the giving up of the bond upon the payment of the money is a discharge thereof, otherwise if the obligee take away the bond, for then he had no authority to receive any money; but if the scrivener be entrusted with the mortgage deed, not the bond, he hath only authority to receive the interest but not the principal, because the giving up the deed is not sufficient to restore the estate; but there must be a re-conveyance to restore the estate, whereas the giving up a bond in law is an extinguishment of the debt. Whitlock v. Walham, 1 Salk. 157.

But then it is said there is no difference between the delivery of mortgage deeds by a mortgagee to the mortgagor; and the delivery of mortgage deeds by the mortgagee to a third person. And it has been decided that by a delivery by a mortgagee to a mortgagor of mortgage deeds, there can be a donatio mortis causâ of the mortgage. Richards v. Syms, Barnard. 90; Hurst v. Beech, 5 Madd. 351 (21 R. R. 304). But there is a great difference where deeds are delivered to a person who has an interest, and a person who has no interest. And this difference is established both in the civil law and our own law. By the civil law – Si debitori meo reddiderim cautionem videtur inter nos convenisse non peterem. So by our own law, delivery of a bond to a debtor is a discharge of the debt. 2 Roll. Abr. 56. But by the delivery of a bond to a third person no presumption arises of a gift to that person, either by the civil law or our own law. A lessee of tithes cannot grant tithes without deed; yet a parson may [526] grant tithes to him that is to pay them without deed. Shep. Touch. 230. So common of pasture cannot be granted without deed, but it may be without deed to a person who has land to which common is appurtenant; and in Hassel v. Tynte, Ambler, 318 Lord HARDWICKE recognizes the distinction

*

No. 2. —Duffield v. Elwes, 1 Bligh N. §. 526, 527.

for, he says, it was a very considerable question whether, by the delivery of mortgage deeds, there be a good donatio of the mortgage, and he there says, Richards v. Syms was a slight precedent.

This case, therefore, is brought within none of the exceptions, and where such an immense mass of property is invested upon mortgage, it would be dangerous to make a precedent, by which large property might be disposed of upon the testimony of one witness; with none of the checks which the law imposes upon nuncupative wills. I admit that it has been decided both in Cashburne v. Inglis, 2 Eq. Ab. 728, 1 Atk. 603, and in various other cases, that the person having the equity of redemption of the mortgage is considered as owner of the land, and the mortgagee is only entitled to retain it as a security for his debt; and that a mortgage in a Court of Equity is only considered as personal assets; but still it is a debt, and only a chose in action ; and being an incorporeal thing does not pass by the delivery; but then it is said by Mr. Sugden to be like the case of an equitable mortgage where a Court of Equity would compel an actual mortgage to be made, where deeds have been deposited to secure money lent; but of these cases Lord ELDON said in Ex parte Mountford, 14 Ves. 606 (9 R. R. 359), that the first determination establishing a mortgage by a deposit of deeds surprised the bar considerably. The present case, however, is different.

*

Here

the party comes as a volunteer; the case of an equitable mortgage rests upon contract and a valuable considera- [* 527] tion. There are two mortgages in this case; one is a mortgage alone; the other mortgage is secured by a bond; but if there can be no donatio mortis causâ of a mortgage, the fact of there having been a bond given can make no difference; the bond is only collateral to the mortgage, and the incident must follow the principal.1

Mr. Sugden in reply:

The gift took place in the morning in the absence of the deeds. Gesture is sometimes stronger than words; which may be extorted. In Gardner v. Parker, the VICE-CHANCELLOR compelled the executor to lend his name to the donee for the purpose of suing upon the

1 Mr. Pepys proposed to argue the case for Mr. Chambers; but the LORD CHANCELLOR said, that unless he could

show that his client had a distinct interest from the other respondents, he could not be heard.

No. 2. Duffield v. Elwes, 1 Bligh N. S. 527, 528.

instrument. This was one step. The Duchess of Buccleugh v. Hoare provided another step, where the VICE-CHANCELLOR held that the heir was a trustee to make the heritable bonds effectual for the donee. The fallacy of the judgment is in supposing the claim to be against the donor, whereas it is against his representatives. In mortgages the estate in the land waits on the money. The debt is the principal thing. The land is the incident inseparable from it. When the debt is assigned, the security must follow. The EARL OF ELDON.

In the first of these causes there is an appeal from the judgment (1 Sim. & Stu. 244) of the then VICE-CHANCELLOR, the present MASTER OF THE ROLLS, in which he makes this declaration, and from that part of the judgment the present appeal is brought. [* 528] This Court doth declare, that this Court being of opinion that a mortgage security cannot by law be given by way of donatio mortis causâ, the appellant, Emily Frances Duffield, was not entitled to the mortgage monies secured by the indentures of the 2nd and 3rd of November, 1820, and the bond of 12th July, 1820, and by the indentures of lease and release and mortgage, dated the 11th and 12th of July, 1820.”

This judgment, therefore, proceeds upon the expression of an opinion, that a mortgage security cannot by law be given by way of donatio mortis causâ; and if it be true that a mortgage security cannot by law be given by way of donatio mortis causâ, it certainly then would be unnecessary to inquire whether the mortgage of November, 1820, and the bond of July, 1820, and the indentures of mortgage also of the 11th and 12th July, 1820, have been given by way of donatio mortis causâ; because if a mortgage cannot be so given, it is quite unnecessary to consider whether, under the circumstances of this case, it can be held that there was a donatio mortis causâ.

Before I proceed to state the opinion which I have formed upon this subject, it is my duty to the learned Judge, from whose judgment this is an appeal, to say, that probably he has been influenced in the opinion which he has expressed by something which had fallen from me in a conversation with him, in which I had certainly expressed very great doubt whether a mortgage could be made the subject of a donatio mortis causâ. I consider it just to state that this is so.

The judgment is commenced by the learned Judge in the words

No. 2. - Duffield v. Elwes, 1 Bligh N. S. 528–530.

I am now about to read. The case of a bond I consider to be an exception and not a rule; property may pass without

writing either as a donatio mortis causâ, or by a nuncu- [* 529] pative will according to the forms required by the statute. The distinction between a donatio mortis causâ and a nuncupative will is, that the first is claimed against the executor and the other from the executor. Where delivery will not execute a complete gift inter vivos, it cannot create a donatio mortis causâ, because it will not prevent the property from vesting in the executors; and as a Court of Equity will not inter vivos compel a party to complete his gift, it will not compel an executor to complete the gift of his testator. The delivery of a mortgage cannot pass the property inter vivos: first, because the action for the money must still be in the name of the donor; and secondly, because the mortgagor is not compellable to pay the money without having back the mortgaged estate, which can only pass by the deed of the mortgagee, and no Court would compel the donor to complete his gift by executing such a deed. As to the case where bond accompanied the mortgage deed" (I shall have occasion to state presently the distinction between the two mortgages), "I was at first inclined to think that as the bond alone, if it had been the only security for the debt, would under the decisions have passed as a donatio mortis causâ, so it would draw after it the mortgage as being a collateral security for the same debt, but upon further consideration I think that the delivery of the bond, where there is also a mortgage, cannot be considered as a gift completed. The mortgagor has a right to resist the payment of the bond without a re-conveyance of the estate, and it cannot be maintained that the donor of the bond would be compelled to complete his gift by such re-conveyance."

The principle which is applied in the decision of * this [* 530] case, is the principle upon which Courts of Equity refuse to complete voluntary conveyances. No Court of Equity will compel a completion of them, and throughout the whole of what I have now read, the donor is considered as a party who may refuse to complete the intent he has expressed; but I think that is a misapprehension, because nothing can be more clear than that this donatio mortis causâ must be a gift made by a donor in contemplation of the conceived approach of death, that the title is not complete till he is actually dead, and that the question therefore VOL. IX. -54

No. 2. Duffield v. Elwes, 1 Bligh N. S. 530, 531.

never can be what the donor can be compelled to do, but what the donee in the case of a donatio mortis causâ can call upon the representatives, real or personal, of that donor to do; the question is this, whether the act of the donor being, as far as the act of the donor itself is to be viewed, complete, the persons who represent that donor (in respect of personalty-the executor, and in respect of realty the heir-at-law) are not bound to complete that which, as far as the act of the donor is concerned in the question, was incomplete; in other words, where it is the gift of a personal chattel or the gift of a deed which is the subject of the donatio mortis causâ, whether, after the death of the individual who made that gift, the executor is not to be considered a trustee for the donee, and whether, on the other hand, if it be a gift affecting the real interest, and I distinguish now between a security upon land and the land itself,-whether if it be a gift of such an interest in law, the heir-at-law of the testator is not by virtue of the operation of the trust, which is created not by indenture but a bequest

arising from operation of law, a trustee for that donee. I [* 531] apprehend that really the question does not turn at * all upon what the donor could do, or what the donor could not do; but if it was a good donatio mortis causâ, what the donee of that donor could call upon the representatives of the donor to do after the death of that donor.

With respect to the question of fact, whether those mortgages and the bond were or were not given in such a manner as constituted a good donatio mortis causâ, if there be no objection to the fact, that the subject of the mortgage was an interest in real estate, I do not apprehend that the gentlemen at the bar, though they criticised very much the nature of the evidence which has been given, meant to ask for any issue to try whether there was or was not a good donatio mortis causâ, if a mortgage can be the subject of a donatio mortis causâ. In some of the cases which I shall have occasion to mention, it will be seen that where there is any doubt whether in point of fact there was that which would constitute a good donatio mortis causâ, if in point of law the subject of it can be made the subject of a donatio mortis causâ, it is a very familiar thing to direct an issue or issues to try that fact. That not having been desired, the case is to be considered on its merits. Supposing the testator to have the power, has he fallen into a mistake with respect to the subject which he did intend so to give, and has he attempted to