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4 & 5 W. & M. CAP. 20, DOCKET. 791 redemption, i. c. nothing more than a debt charged upon the estate, without any conveyance of the estate to the creditor, or any right or equity of re- demption reserved, such security is not a mortgage and does not fall within the Statute, because a charge is at once extinguished by payment of the debt, and from its nature must subsist till the debt is paid; indeed the only relief on an equitable mortgage is by sale. There is nothing in the Statute to deprive a mortgagor, who has committed the fraud against which the Act is directed, of any right he may have at law to redeem. What is contemplated by the Act is the equity of redemption, and so long as there is a legal right to redeem the property, the Statute has no effect. The Vice-Chancellor added, that it was not surprising that the Statute has been so seldom resorted to, considering that its provisions are so peculiar. Unless the mortgagor discovers in writing the prior mortgage, he has lost his right to redeem. A verbal notice, however clear and although often repeated, would not prevent the operation of the Statute. It was therefore held that a deed simply charging money on land, though containing a covenant to execute a mortgage when required so to do, was not a mortgage within the meaning of the Statute, nor was a deed of further charge without a proviso for redemption within it. CAP. XX. An Act for the better discovery of Judgments in Courts of King's Bench, Common Pleas, and Exchequer at 'Westminster. Whereas great Mischiefs and Damages happen, and come, as well to Persons in their Life times, but more often to their Heirs, Executors, and Administrators, and also to Purchasers and Mortgagees by Judgments entred upon Record in their Majesties Courts at Westminster, against the Persons Defend- ants, by reason of the difficulty there is in finding out such Judgments: For remedy whereof: III. And be it further enacted by the Authority aforesaid, That no Judgment not doggetted, and entred in the Books as aforesaid, shall affect any Lands or Tenements as to Purchasers or Mortgagees, or have any Preference against Heirs, Execu- tors, or Administrators, in their Administration of their Ances- tors, Testators, or Intestates Estates. * V. Provided always, and be it enacted by the Authority 582 aforesaid, that this Act shall continue and be in force for one Year, from the Five and twentieth Day of March, One thousand six hundred ninety and three, and from thence to |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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