{ "id": 11275089, "name": "JAMES W. DOAK vs. THE BANK OF THE STATE", "name_abbreviation": "Doak v. Bank of the State", "decision_date": "1846-06", "docket_number": "", "first_page": "309", "last_page": "338", "citations": [ { "type": "nominative", "cite": "6 Ired. 309" }, { "type": "official", "cite": "28 N.C. 309" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "2 Ired. 129", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8686187 ], "opinion_index": 1, "case_paths": [ "/nc/24/0129-01" ] }, { "cite": "1 Dev. Eq. 537", "category": "reporters:state", "reporter": "Dev. Eq.", "case_ids": [ 11276223 ], "opinion_index": 1, "case_paths": [ "/nc/16/0537-01" ] }, { "cite": "1 Ired. 97", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 2104331 ], "opinion_index": 1, "case_paths": [ "/nc/23/0097-01" ] }, { "cite": "3 Ired. Eq. 186", "category": "reporters:state", "reporter": "Ired. Eq.", "opinion_index": 1 }, { "cite": "1 Ired. 179", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 2104376 ], "opinion_index": 1, "case_paths": [ "/nc/23/0179-01" ] }, { "cite": "4 Dev. 50", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 11275382 ], "opinion_index": 1, "case_paths": [ "/nc/15/0050-01" ] } ], "analysis": { "cardinality": 1585, "char_count": 58847, "ocr_confidence": 0.472, "pagerank": { "raw": 2.493157945235049e-07, "percentile": 0.8087512051860939 }, "sha256": "601c8106154cb51c9bc336fb42893012c1917494cf9b8a662eff37729892bc3f", "simhash": "1:92400da0192be4b4", "word_count": 10558 }, "last_updated": "2023-07-14T17:06:19.966856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES W. DOAK vs. THE BANK OF THE STATE." ], "opinions": [ { "text": "Daniel, J.\nThe plaintiff, as the assignee in law of all the effects, mentioned in the schedule of Dan Alexander, an insolvent debtor, dated on the 21st day of October, 1841, has brought this action \u25a0 of assumpsit against the Bank, to recover the amount of money, which the one hundred shares of bank stock, mentioned in the said schedule, produced on the sale thereof, made by C. Dewey, and by him placed in the possession of the bank. The plaintiff declares, that the bank had and received the said sum of money to his use. The bank, under the plea of non assumpsit,, resists the demand of all or any part of the monies so paid in by Dewey. First, because D. Alexander, before the date of the assignment of his effects to the plaintiff, to-wit, on the Gth day of January, 1841, had pledged the said stock to one Blackwood, its agent, as collateral security to satisfy a debt of $9,977, then owing by him to the said bank. And secondly, that D. Alexander gave a check for $371 dated on the 15th day of December, 1841, to apply so much of the money then standing in bank to his credit, to the satisfaction of a debt to that amount, which he then owed the said bank; and that the same had been applied accordingly, without any notice at the time to the bank, that Alexander had, before the date of the check, taken the benefit of the insolvent law in Guilford Superior Court. The evidence of the pledge to the bank of the aforesaid stock is to be found in the two deeds described in the case, by the letters A. and B. The plaintiff insists, that these two deeds are void as to him, by force of the act of assembly, (Rev. St. c. 37, s. 24) because they have never been registered. The answer to this objection is, that the statute only declares, that deeds of trust and mortgages shall not be valid against creditors or purchasers, but from the registration. The instruments, marked A. and B. are certainly not deeds of trust, and we think that they are not mortgages : they are, what they profess on their face to be, pledges of stock to secure the payment of the debt therein mentioned. A mortgage of personal property in law differs from a pledge; the former is a conditional transfer or conveyance of the property itself; and if the condition is not duly performed, the whole title vests absolutely at law in the mortgagee, exactly as it does in a mortgage of lands ; the latter, a pledge) only passes the possession, or at most is a special property in the pledge, with the right of retainer, until the debt' is paid. A mortgage is a pledge and more, for it is an absolute pledge, to become an absolute interest, if not redeemed in a certain time. A pledge is a deposit of personal effects, not to be taken back, but on payment of a certain sum, by express stipulation, to be a lien upon it. Jones v. Smith, 2 Ves. Jun. 378, 4 Kent\u2019s Com. 138 (3 edit.) 2 Story\u2019s Eq. 227. Generally speaking, a bill in equity to redeem will not lie, in behalf of a pledger or his representatives, as his remedy is at law, upon a tender of the money. 2 Story\u2019s Eq. 298, 1 Ves. 298. We see that there is a very marked difference between a mortgage and a pledge of personal property; and, as the Legislature has not said, that pledges, to be good against creditors and purchasers, must be registered, neither can we declare them to be within the meaning and operation of the aforesaid registry act. We cannot tel!, but what the Legislature designedly left pledges out of the act. It seems to us, therefore, that .the deeds A. and B. are made at the common law, and do not require to be registered to give them effect. The receipt by the bank of so much of the proceeds of the sale of the said stock, as was necessary to satisfy the debt, for which the stock had been pledged, had been received,not to the use of the plaintiff,but to the use of the Bank.\nSecondly. The #371, standing in Bank to the credit of D. Alexander, was legally assigned to the plaintiff, before the date of the check given by Alexander to the Bank for that money. The Bank alleges, that it had no notice of this assignment to the plaintiff when the check was received and applied in extinguishing D. Alexander\u2019s debt to that amount then in Bank. The answer to this allegation .is, thafia plea of a purchase for a valuable consideration, without notice, is not available against an adverse legal title to the thing, either in a Court of Law or Equity. It is very plain, that the stock was sold by Dewey and the purchase money received by the Bank with the assent of Alexander, Blackwood, and the Bank; and that the sale of the stock and receipt of the purchase money were legally made,-are facts obliged to be admitted by the plaintiff, before he can be permitted to rely on either the first or third counts in his declaration. But, to whose use the money was had and received by the Bank, is the question now to be decided. There was no evidence in the case, applicable to the second count, even -if assumpsit could be maintained against the Bank, for refusing to transfer stock to a purchaser of it. We are of opinion, upon an examination of the whole case, that all the money received by the Bank, over and above the sum necessary to satisfy the debt and interest mentioned in the deed marked B, was money had and received to the use of the plaintiff,- and no other sums of money. The check given by Alexander, transferred to the Bank no title to the money which was standing there in his name, because it had in law been assigned to the plaintiff before the date of the check. We think that the plaintiff was entitled to recover this money under the third count in the declaration.\nWe find no authority that a demand was necessary before the plaintiff could sustain his action ; this objection, taken by the defendant, is therefore over-ruled.\nNash, J.\nThe proceeds of the sale of the stock are claimed by the plaintiff, upon the ground that the transfer to the Bank was void, because the deeds or bonds of Sept. 1839, and Jan. 1841, were not proved and registered, agreeably to the provisions of the Act of Assembly, Rev. Stat. ch. 37, s. 23, 24.\nI agree with my brother Daniel, that the deeds or bonds, under which the defendants claim the proceeds of the stock, are valid at common law, and need not be registered to give them effect. I cannot see that the transaction came within the meaning of the Act referred to, and certainly not within its words. The transfer of the stock by Alexander to the Bank was neither a mortgage nor a deed, or conveyance in trust, but was simply what it purported to be, a pledge of the stock. The difference between a mortgage and a pledge, strictly as such, is well known and recognized by the most approved writers. The passages from \u201c Story\u2019s Equity,\u201d referred to in Judge Daniel\u2019s opinion, fully prove it. A mortgage conveys the entire property in the thing mortgaged conditionally, so that, when the condition is broken, the property, at law, remains absolutely in the mortgagee; but a pledge never conveys the general, but only a special property, to the bailee; and the effect of a failure on the part of the pawner, to pay the money for which it is pledged, is not to convey the entire -property in the thing to the bailee, but to give him a power to dispose of it and pay himself. If he does not do so, but retains the property, the pawner at any time has a right to redeem it. If the debt is paid or the money tendered by the pawner, it is the duty of the bailee to return the thing pawned, and, if he does not, an action at law lies against him, as the whole property i^' re-vested thereby in the pawner. Jones on Bail, p. 91. So, also, it is essential to a pledge, that the possession of the article should accompany it. My opinion, however, is not, in this case, formed so much upon the difference between a mortgage and a pledge, as upon the nature of the property here put in pawn, namely, the certificate of stock: a mode of securing debts to the Bank, known to the Legislature and sanctioned by them. In the Act chartering the Bank of Cape Fear, 2d vol. Rev. St. s. 8, p. 40, in pointing out in what things the corporation shall be permitted to deal, the Act enumerates, \u201c or in the sale-of goods really and truly pledged for money lent and not redeemed in due time.\u201d This Act was passed in 1804. The charter of the Merchants\u2019 Bank of Newbern was granted in 1834, 2d vol. Rev. Si. p. 69. In the 5th sec., among the fundamental articles of the corporation, it is provided, \u201c In all cases, in addition to the usual personal security, the stock of directors shall be considered as a pledge, for the re-payment of the money they may borrow, either as principal or security.\u201d And there is the same restriction as t\u00f3 subjects in which they shall deal, as in the charter of the Cape Fear Bank, expressly including articles pledged. The acts concerning mortgages, to which reference has been made, were passed in 1820 and 1829. Both before and after the passage of these acts, the Legislature recognized the right of the Banks to receive in pawn or pledge, its own stock as collateral security for money loaned it is to be received not in mortgage, or in trust, properly speaking, but in pledge, and subject, of course, to the laws regulating pawns. Nor can any evil possibly result from such air arrangement, to any creditor of the pawner, for the certificate of stock must, in every instance, accompany the transfer, to make it effectual. I cannot therefore persuade myself that the Legislature intended to embrace within its provisions,'upon the subject of mortgages and deeds of trust, such a transaction, as this.\nI concur with my brother Daniel in affirming the judgment.", "type": "majority", "author": "Daniel, J. Nash, J." }, { "text": "Ruffin, 0. J\u201e\nI concur in the opinion, that the judgment should be affirmed. I think a pledge of stock in a corporation, or in the public funds, or of securities for a. debt, whether by parol or in writing, is not within the act, which requires deed of trust or mortgages of estates to- be registered, in order to give them validity. It is, neither in form or substance, within the language of the act, nor within the mischief which it sought to suppress. Had it pleased my brethren to allow the cause to be decided on this point \u2014 and it is the only one which is necessary to its decision \u2014 the judgment might, as far as I am concerned, have been entered, immediately after the argument at the last term. But they have thought it proper not to confine their opinion to the facts of this case, and hold that a pledge of stock is not within the act, but place their judgment upon broader ground, that all pledges, whether of stock, choses in action, or specific articles, are without the act. In that part of their opinion I did not agree ; and, with a view to a fuller consideration of the question, the case was left under advisement. But we have come no nearer together than at first, and it now becomes, my duty to give the reasons for my opinion.\nThe act of 1829, c. 20, is entitled \u201can act to prevent fraud in deeds of trust and mortgages;\u201d and it enacts, \u201c that no deed of trust or mortgage, for real' or personal estate, shall be valid to pass any property as against creditors or purchasers from the donor or mortgagor, but from the registration of such deed of trust or mortgage, in the County where the land lieth, or, in case of chattels, where the mortgagor resides or,the chattels are situate.\u201d My brethren say, that a pledge or power is not mentioned in the act, but only deeds of trust or mortgages, and that there are certain known differences between a pledge and a mortgage of chattels; and therefore, the Legislature may have designedly left out pledges, and, at all events, that the Court cannot construe the act as if they were in it. It is plain, that the argument is merely, verbal, turn ing upon the particular term \u201c mortgage\u201d and having na regard to the mischief within the purview of the act, nor the means intended t o suppress it. But that is not the principle of the construction of remedial statutes, or those to prevent fraud. To stick to. their letter is sticking in the shell and losing the kernell.\nThey are to be liberally construed, in order to defeat fraud, prevent artful shifts and evasions, and protect fair dealers, and advance their remedies. I need not quote authority for that position. It is a maxim in the law, and my is to mind decisive of this question. I do not dispute the distinction between pledges and mortgages, which are mentioned ; though, in modern times, Courts of Equity have not hesitated to give .relief on pledges, as if they were pure mortgages, upon the ground, that they were but securities for debt and that the rights of the parties may involve an account. Certainly, in this State, in the instance of the most valuable of our chattels, namely, slaves, bills for redemption or foreclosure have been constantly entertained, as well when the slave wan pledged, by being put in the possession of the lender of the money without a written conveyance, as when there was in terms a mortgage proper by deed. But, let it be admitted that all those distinctions do fully subsist at the present day, still they are differences in no degree material to the purpose which we are now considering, namely, the reason why the Legislature requires mortgages to be registered, and to what conveyances or contracts those reasons extend. The object of the law was to prevent fraud, and to that end to require all encumbrances upon tangible estates to be registered) that purchasers and creditors might have notice of their existence, nature and extent. It mentions \u201c deeds of trust\u201d and \u201c mortgages,\u201d but it is not satisfied by applying it only to conveyances, which are, technically and in form, deeds of trust or mortgages. The intention of the Legislature can be fulfilled, only by including within the scope of the Act, all other conveyances, which the parties intended to have the same effect as if they were \u201c deeds of trust\u201d or \u201c mortgages\u201d upon their face ; in other words, were meant to be securities for moneij, and between the parties are but securities. If the construction is to be narrowed down, so as to make it turn on the word \u201cmortgages,\u201d and not include \u201ca pledge,\u201d because a pledge is not a mortgage ; wrhy, for the same reason. an absolute deed, with a separate parol agreement for a reconveyance or redemption is not within the Act, since that is not upon its face a \u201c mortgage,\u201d but is only held by a Court of Equity to be a security in the nature of a mortgage. Accordingly, in the first case that arose under the encumbrance registry acts, that of Gregory v. Perkins, 4 Dev. 50, it was held, that the necessary construction of the act of 1820, by whi ch instruments, which in themselves are deeds of trust or mortgages, were required to be registered- within six months, was to avoid deeds which Avere intended to be securities, but do not profess upon their face to be so. The Court said, \u201c it is not surprising, that, with the experience of the evils of secret liens and pretended encumbrances, the Legislature should require, when the contract, in its terms, creates an encumbrance, that notice should be given of it, that other persons may know how to deal with the former owner. For the like reason, and as a necessary consequence, when nothing but an encumbrance Avas meant, the parties must frame the evidence of their contract accordingly. In the former cas\u00e9, (that is, where there is a mortgage in form,) the encumbrance is lost, because the owner will not register it. . In the latter, (that is, when upon its face the deed is absolute,) because by his folly he cannot register it.\u201d And the Court then added, that a case was brought within the Act by the reservation of any thing to the former owner, which, if inserted in a deed, would give him a valuable interest in the property \u2014 whether that interest was legal or equitable. It is very plain, that it must in-reason be so. There are two kinds of fraud practised by means of these incumbrances. One is, where the former owner remains in possession, using and enjoying the estate after he has conveyed it as a security to another, and thereby gains a false credit. Then the law requires that the conveyance should speak the truth in itself, as to its nature, and also that it should be registered, in order that the world may see for what the encumbrance is created. Another is, where the possession passes, to the incumbrancer, but still leaving an interest in the former owner. Then, also, the law requires that the conveyance should speak the truth, and be registered for the purposes of publicity, in order that the creditors of the former owner may not be baffled by his apparent departing with the property, but take their remedies, legal or equitable, directly against the debtor\u2019s remaining interest, whatever it may be. For that reason, in Halcombe v. Ray, l Ired. 340, it was held, that an absolute deed, intended at the time as a mortgage, was void under the Act of 1820 and 1829; because, if they were not thus held, it would make those acts a dead letter, as parties would have nothing more to do, but leave out the condition or proviso for redemption, and the whole policy of the Legislature would fall to the ground. The language of the case is, \u201c If the deed had truly expressed the contract of the parties, the mortgagor\u2019s creditors would have a plain logoi remedy under the Act of 1812, against his equity of redemption in land, and in equity against that in chattels ; and the Legislature, by the Acts under consideration, intended to provide for those creditors such means of knowledge as would enable them to avail themselves promptly and chea]5ly of those remedies. Our duty is, to receive and administer the statutes in a sense which will secure to the creditor the whole benefit intended for him ; and we are obliged to hold the deed void, because, if allowed to stand, the creditor would be in the same condition as if such laws (the registry acts) had never passed.\u201d It is thus seen, that this Court thought the meaning of the Act was not to be found out by tying our attention down to the words \u201c deeds of trust or mortgages\u201d; but that those words were used as examples or instances of incumbrances, and that the true sense of the Act extends to every transaction that was intended between the parties to be an encumbrance. That is declared, in so many words, in Newsom v. Roles,, 1 Ired. 179. The Court say \u201c the case of Gregory v. Perkins has in view those conveyances, which, whatever he their form, are intended by the parties as securities; upon which, if the instrument had set forth the true and whole agreement, the property, in the view of the Court of Equity, is deemed to be in the apparent vendor, though liable, as a security, for a sum of money due to the apparent vendee.\u201d In other words, that case treats of transactions \u201cthat appear to the world to be sales, but are, as between the parties, secretly mortgages, or in the nature of mortgages.\u201d All these positions were laid down as the opinions of the Court, and not of the single Judge who spoke for the Court; and I believe they were fully entertained by all the members of the Court, at the time. To shew how completely the doctrine was settled in my own mind, as the doctrine of the Court, I will take the liberty of referring to what I said of it in Womble v. Battle, 3 Ired. Eq. 186, in using it in illustration of the positions I there took. It was, \u201c that, as the object of the Acts of 1820 and 1829 is to suppress fraud-by compelling persons to register incumbrances, the necessary construction of them is, that every incumbrance, not in writing, and so not capable .of registration, is within the mischief of the Act, aud made void by it.\u201d I am aware that these registry acts have not been favorites of my brother Daniel, because they treat acts and avoid them as-fraudulent, -when there may not be an actual or intended fraud; and in the case of Womble v. Battle, he refused to allow any weight to the argument drawn from them against the vendor\u2019s, or other secret, equitable liens. But the act of 1829 is not directed against frauds actually perpetrated, as the St. 13 Eliz. is, but regards acts which tend to fraud. As it says, it really means \u201c to prevent fraud in deeds of trust and mortgages,\u201d by making them void in the same manner as they would be by the statute of 1715, if they were actually fraudulent. That policy of the law a Judge ought to further and not defeat by any opposite motion of his own. For my own part,-however, I deem it a most wise policy to cause incumbrances to be published. And in the case last mentioned, Judge Nash seems to have the same views of it. He says, \u201c there can be no doubt of the policy of the Legislature in the enactment of this statute, of 1829. It was to put an end to the many frauds which mighthe. practiced on creditors and purchasers by. secret deeds of trust and mortgages, by furnishing a convenient and sure mode, in which might be discovered all incumbrances under which an individual held his property.\u201d Now, I would ask, is not a pledge of a negTO an incumbrance 1 If not a mortgage, is it not a security for debt, and at all events, a securitj^ in the nature of a mortgage 1 Is it not, then, within the mischief of the act, and therefore to be remedied by so construing the act, as to prevent its being evaded by means of the use of a pledge in the place of a mortgage, as contra-distinguished from it by an actual conveyance of the chattels - \u2014 -I think the cases I have cited, if they are to be allowed any authority as adjudications of this Court, decisively answer those questions; and that they are as much forbid a resort to pledges to escape the necessity of giving notice of them by registration, as they do a resort for that purpose to-conveyances absolute upon their face. Neither is \u2018 a mortgage,\u201d in terms not appearing upon its face to be so. But the same reason, which induced the Legislature to forbid the taking of absolute deeds, when a security in nature of a mortgage is intended, likewise forbids the taking \u201c a pledge\u201d instead of a mortgage, if by taking the pledge, the transaction is to be by a parol or unregistered agreement so as to be kept secret. I cannot but express exceeding regret at the thought, that those cases should be over-ruled, both because it tends to subvert all certainty in the law, and also to obstruct a most wise\" policy of the Legislature. Independent, however, of the-authority of those cases and the reasoning on which, as declared in them, the resolutions were adopted, they are fully sustained by adjudications upon other statutes, in their nature remedial, or for the suppression of fraud. Take for example what Lord Coke says in Irvin\u2019s case, 3 Rep. 82. that, if, contrary to St. 27 Eliz. avoiding, as to purchasers, a previous conveyance with a power in the grantor to revoke it, a man make a deed and reserve to himself a power to revoke it with the assent of another, it is within the statute, \u201c for otherwise the good provision of the act by a small addition \u2014 an evil invention \u2014 would be defeated.\u201d So, it is a rule of law, that an appointment is not a conveyance, and the estate of the appointee takes effect, as if it had been created in the instrument, which created the power. Yet Lord Hardwicks, notwithstanding the verbal criticism, held that the execution of a power is a conveyance within the meaning of the St. 13 Eliz. c. 5, in favor of creditors, although the act uses the terms, 41 feoffment, gift, grant, alienation, bargain, and conveyance,\u201d ousting \u201c appointment,\u201d or any word equivalent to it in its restricted sense of being the execution of a power. Marlborough v. Godolphin, 2 Ves. 60. The case of Scrafton v. Quincy, 2 Ves. 413. is Still more appropriate, because it was a decision upon a registry act. A deed of appointment was made for land lying in a Register County, in pursuance of a power created in a deed not registered, and the appointee was postponed to a mortgage, subsequently made but registered first. It was contended the Act did not apply, because those deeds did not convey land, but only created a power to appoint, and the appointment. But what said the Chancellor ? \u201c Consider the intent and meaning of the act. The case is clearly within the mischief. It is said this deed is not to be considered as a separate conveyance, but only the execution of a power. If that construction was to prevail, there would be an end of the registry and of the act of parliament, for by these means secret deeds\u201d (not conveying the land, but creating and executing powers over it,) \u201c might be set up to defeat him who had registered. Bring a conveyance actually affecting the land, though in virtue of a preceding power in another deed, this is, within the intent of the statute and common understanding, such an incumbrqnce as ought to be registered.\u201d One would think that those cases and observations were sufficient to prove the proper construction of our statute, and that a pledge of specific chattels is within the provisions* .just as much as a mortgage proper. But I will add some others, that I may omit nothing that may serve to elucidate the point, and give full efficiency to this valuable statute, if executed in the spirit in which it was' passed. In Saunders v. Ferrell, 1 Ired. 97, there was an ante-nuptial marriage contract, and the husband fraudulently reduced it to writing, so as to omit a material provision in favor of the wife ; but after the marriage,, a settlement was executed according to the original and true agreement. Yet the Court held, that evidence of the contract, as far as it differed from the written agreement, could not be received in support of the settlement, notwithstanding the fraud on the wife, because it was in parol; for it was deemed \u201c a self-evident proposition, that those agreements must be in writing, as in that form alone do they admit of registration\u201d \u2014 which ceremony the law requires, as respects marriage contracts. If; might have been said, then, that the Legislature knew that people sometimes made verbal marriage contracts, and therefore, that in requiring marriage contracts to bo registered, written ones alone were meant. But the answer was, that secret incumbrances, in the form of marriage contracts, were the evils in view, and in order to prevent them the law required the registration of all marriage contracts, and, in so doing, required them by implication to be in writing, and made them- void if they were not. The same reason applies here! Again: in Thorpe v. Ricks, 1 Dev. and Bat. Eq. 613, a man contracted for the purchase of land, and, in order to pay for it, borrowed the money, and secured it by having- the-land conveyed by his vendor to the lender of the money, taking from the latter a written acknowledgment, that the land was but a security. The Act of 1812 enacts that \u201c the equity of redemption in lands pledged or mortgaged,\u201d shall be liable to execution; and it was contended, that the purchaser\u2019s interest was not subject to execution, because there was no mortgage,\u201d and of course he had no \u201c equity of redemption,\u201d as the deed was not a formal mortgage,with an express provision for defeazance. But notwithstanding the policy of selling such interests under execution, instead of a decree of a Court of Equity, did not accord with our views, (as it never did, I believe, with those of any lawyer who gave the subject even a little thought,) the Court held, that we were bound to advance the policy approved by the Legislature, and therefore, that an equity of redemption, raised by construction of the Court of Equity, was subject to execution, as well as those expressly made so by the terms of a mortgage. This was so held, because \u201c it is obvious,\u201d said Judge Gaston, \u201c that the great purpose of the enactment was to furnish an easy and expeditious remedy to creditors, against debtors who held redeemable interests, actually of value; and it is equally obvious, that if we adopt the narrow construction contended for, every debt- or, by a slight change o\u00ed form, may secure to himself such valuable interests, and place them beyond the operation of the statute. Therefore, we feel bound to hold, that whatever a Court of Equity holds to be an equity of redemption in land is, by force of the express legislation, liable to sale under execution.\u201d It was also held, in Harrison v. Battle, 1 Dev. Eq. 537, that when one makes a deed of land, in trust to sell to- pay debts, the resulting trust, though it cannot be sold, as a trust, under the first section of the Act of 1812, may be sold as an equity of redemption, within the second section. Why ? there is no \u201c mortgage\u201d; and that is the stronger because-the Act in two sections distinguishes between \u201c trusts\u201d and \u201c equities of redemption.\u201d But the trusts there spoken of are of- a different kind from that resulting to a debtor, on his conveyance upon a trust for payment of debts, and therefore the differences between those trusts and equities of redemption did not forbid the bringing of other trusts within the second section of the Act, that were within the reason of it. Therefore, Judge Henderson said, \u201c we cannot distinguish his, the debtor\u2019s, right to have the lands again after the payment of the debt, for which it stood as a security, from an equity of redemption. It has all the essentials of that right, although it wants some of the formal parts. Its exemption from sale under a fieri facias is equally an evil, with the exemption of equities of redemption. The mischief is precisely the same, and we therefore think it within the spirit of the section of the Act.\u201d This doctrine came under review in Pool v. Glover, 2 Ired. 129, and the Court admitted that there were forcible objections to selling resulting trusts, under legal executions, but said \u201c that cannot justify the Court in striving against the policy of the Legislature, by putting such construction on the statute, as will virtually repeal it, by enabling persons to evade it by the simplest contrivance. The question is, what is a mortgage, and what an equity of redemption within the sense of the Act ? Is a deed of trust of that character ? Not a reason can be given against selling such a resulting trust, which would not equally condemn the sale of a proper equity of redemption \u2014 one arising on \u201c a mortgage\u201d in the most appropriate sense of that term. When, therefore, such sale (of a resulting trust) is argued against, the fault is found with the policy of the act, and not with its construction. The construction is unavoidable. The purpose of the act is to aid creditors by a sale of a valuable interest of the debtor under execution. It is remedial and to be construed so as to suppress the previous mischief and advance the remedy. Therefore, the Court could not allow the execution to be baulked by the liberal impediment, that the debtor had not \u201c an equity of redemption,\u201d because he had not conveyed his land to his creditor, with a power to redeem it, but had conveyed it to a third person, with power to call for a reconveyance, upon payment of the same debt before a sale. Such an interpretation would be paltering with the sense of the Legislature. In substance, the debtor has the same interest in both cases ; and therefore it must be liable in both instances alike.\u201d So it seems to me here, that a debtor who gives a mortgage on his slave or horse, and he who pledges them, has in substance the same interest in value and reality, though not in form. In each case he is the owner of the property ; in the one case, he is so at law: in the other, indeed, he is not at law, but he is in equity ; and that, for the very reason that equity has respect to the substance without regard to the form: And in each case the property is liable, as a security, to pay a debt to another person. Is not this, then, precisely the case, in which the Legislature intended, that an encumbrance, in whatever form, as was said in Newsom v. Roles, should be put into writing and registered, in order that the debtor should not, on the one hand, have a false credit, nor, on the other, have an interest of value concealed from his creditors ? What matters it to the creditors of the owner of the property; or how can it affect the policy which called forth these statutes, that, as between the parties themselves, there may be some slight difference between mortgages and pledges, in respect of the remedies on them 1 It is of no consequence whatever. In either case the creditors can have their remedy against the property, either as the legal or equitable property of the mortgagor or pawner for their satisfaction, if they can ascertain his interest; and therefore, the Courts ought so to construe the act, as to afford the creditor all the light as to the debtor\u2019s interest which he would get under the act, if the debtor had given the security in one of those usual forms, which are mentioned in the act, namely a deed of trust or mortgage. Is it possible, that all the anxious legislation \u201c to prevent frauds\u201d by incumbrances, is to be rendered nugatory \u201c by a slight change of form\u201d as was mentioned by Judge Gaston in Thorpe v. Ricks, by calling the incumbrance a pledge instead of a mortgage ? If that be so, who does , not see, that debtors will seldom convey chattels by way of open and formal mortgage, hereafter, but .will proceed by verbal pledge ; especially in those hardest and most oppressive cases, in which the money is advanced upon an agreement for usurious interest. It is to be feared that it would let in a flood o\u00ed fraud. It seems to me, therefore, that, if this were a pledge of a specific chattel, it would be void under the act of 1829, as being clearly within the mischief; and that-this is the plain result of the numerous cases on the act, besides those upon other acts of the like kind. This brings me next to state more particularly the reasons, why the present case is not within the act \u2014 as I think it is not, either in respect of the words of the act, or the mischief. In the first place, the subjects of the conveyances mentioned in the act, are \u201c estates\u201d real or personal, which term in itself denotes something corporeal. But the act is yet mor\u00e9 precise upon this point, when it comes to designate the place for the registration of the deed of trust or mortgage, by saying that it shall be in the County where