APPEAL from the Circuit Court of the United States for the Eastern District of New York. The original transaction, which gave rise to the present suit, was a sale by John Shillaber of about three thousand acres of land, in the State of Illinois, to John Robinson, the appellee. The contract was evidenced by a written agreement, by which it appears that Robinson, in part payment of the Illinois land, was to convey to Shillaber three different parcels of land, lying in the State of New York,–one in Kings, one in Sullivan, and one in Essex, County. On this contract, a suit, in the nature of a bill for specific performance, was brought, in the Circuit Court of Ogle County, Illinois, by Robinson against Shillaber. The latter having subsequently died, his sole heir, Theodore Shillaber, was substituted as defendant. The suit resulted in a decree which, among other things, established an indebtedness of Shillaber to Robinson, on final accounting, of $4,249.58; and ordered that, on the payment of this sum, Robinson should convey to Shillaber the lands in New York, already mentioned. In order that the whole matter should be finally disposed of, the decree then ordered that Robinson and wife should make and deposit with the clerk of the court a good and sufficient conveyance for said lands, as an escrow, to be delivered to Shillaber on his payment of the sum aforesaid within ninety days. It further provided that, if the money was not paid by Shillaber within that time, Robinson should convey the lands, in trust, to Silas Noble, who 'should proceed to sell the same, in such manner, and after giving such reasonable notice of the time and place of such sale, as might be usual or provided by law in the State of New York;' and out of the proceeds pay the expenses of the trust and the money due Robinson, with interest, and hold the remainder, if any, subject to the order of the court. Shillaber did not pay the money as ordered by the decree. Robinson then made the deed of trust to Noble, in strict accordance with the terms of the decree; and Noble, after giving notice of sale, by publication once a week for six weeks successively in the 'Brooklyn Standard,' sold, at public auction, on the sixteenth day of March, 1861, the lands to John A. Robinson, for the sum of $1,950, and made to him a conveyance of the same. Said John A. Robinson purchased the lands for the benefit of John Robinson. Neither the deed from John Robinson to Noble, nor that from the latter to John A. Robinson, was placed upon record. Since that time, and before the commencement of the present suit, John Robinson sold all these lands to divers and sundry individuals, for sums amounting in the aggregate to $9,628. The present suit was commenced in November, 1870, in the Circuit Court for the Eastern District of New York, by Theodore Shillaber against John Robinson, requiring him to account for the value of the New York lands, on the ground that he had never acquired any other title to them than that which he held when the decree of the Illinois court was made, and that, since the purchasers from him were innocent purchasers, without notice of Shillaber's rights, their title was perfect, and Robinson was liable to him on a final settlement for the value of the lands, less the sum which Shillaber owed him, as ascertained by the decree in the Illinois court. The court, on hearing, dismissed the bill; whereupon Shillaber appealed here. The provisions of the New York Revised Statutes, regarding notice, are as follows:–– 'SECT. 3. Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given as follows:–– '(1.) By publishing the same for twelve weeks successively, at least once in each week, in a newspaper printed in the county where the premises intended to be sold shall be situated, or, if such premises shall be situated in two or more counties, in a newspaper printed in either of them. '(2.) By affixing a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, on the outward door of the building where the county courts are directed to be held, in the county where the premises are situated; or, if there be two or more such buildings, then on the outward door of that which shall be nearest the premises. And by delivering a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, to the clerk of the county in which the mortgaged premises are situated, who shall immediately affix the same in a book prepared and kept by him for that purpose; and who shall also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly subscribed by said clerk, and shall index such notice to the name of the mortgagor; for which service the clerk shall be entitled to a fee of twenty-five cents. '(3.) By serving a copy of such notice at least fourteen days prior to the time therein specified for the sale, upon the mortgagor or his personal representatives, and upon the subsequent grantees and mortgagees of the premises, whose conveyance and mortgage shall be upon record at the time of the first publication of the notice, and upon all persons having a lien by or under a judgment or decree upon the mortgaged premises, subsequent to such mortgage, personally, or by leaving the same at their dwelling-house in charge of some person of suitable age, or by serving a copy of such notice upon said persons at least twenty-eight days prior to the time therein specified for the sale, by depositing the same in the post-office, properly folded, and directed to the said persons at their respective places of residence.'
The opinion of the court was delivered by: The distinction is, at most, a technicality. Wilkins v. Wright, 6 McLean, 340. It is laid down by more than one authority of weight that a 'deed of trust in the nature of a mortgage' is, in legal effect, the same as a 'mortgage.' Jones, Mortgages, sects. 60, 62, 1769; Southern Law Review, N. S. vol. iii. p. 712; Hoffman v. Mackall, supra; Woodruff v. Robb, 19 Ohio, 212; Coe v. Johnson, 18 Ind. 218; Coe v. McBrown, 22 id. 252; Newman v. Samuels, 17 Iowa, 528; Ingle v. Cuthbertson, 43 id. 265; Sargent v. Howe, Mr. Michael H. Cardozo for the appellant.
Robinson must account, as trustee, for all the money which he received on the sales of the New York land, together with interest thereon, from the respective times at which they were made.
The decree of the Illinois court stated an account between the parties then before it, and charged Shillaber with the full contract price of the New York lands. This constituted a payment, and passed the equitable title to him, leaving the bare legal title in Robinson, he holding the lands in trust for the complainant. Hill, Trustees, p. 171; Bispham, Principles of Equity, sects. 95, 364.
That decree changed the status of each of the several parties, and from it all their rights and liabilities arise. By it, specific performance was enforced; the Illinois lands were transferred directly to Robinson, and the New York lands to Shillaber; and this, though the court had no jurisdiction over the subject-matter, provided it had jurisdiction of the person. Massey v. Watts, 6 Cranch, 148; Northern Indiana Railroad Co. v. Michigan Central Railroad Co., 15 How. 233; Brown v. Desmond, 100 Mass. 267; Penn v. Lord Baltimore, 1 Ves. 444; Fry, Specific Performance, sect. 63; Pennoyer v. Neff, 95 U. S. 353.
A court of equity of competent jurisdiction can adjust the equities of the parties before it, and, in accordance with a familiar principle, it regards that which is agreed to be done as already performed. Story, Eq. Jur., sect. 64; Hill, Trustees, supra; Francis's Maxims, 13; 1 Fonb. Eq., bk. 1, c. 6, sect. 9.
The court, in so adjusting the equities, adjudged that Robinson should not be required to convey the New York lands to Shillaber, without some security or lien thereon for the payment to him of the balance found due by the decree.
The general intention was to constitute Robinson a mortgagee, and Shillaber a mortgagor, of the lands in question; and it is a leading maxim of construction, that the intention of the parties is the controlling element. Mitchell v. Tilghman, 19 Wall. 387, 395; Shays v. Norton, 48 Ill. 100.
The terms 'trust-deed' and 'mortgage' are used in Illinois and other Western States, if not synonymously, at least interchangeably. Hoffman v. Mackall, 5 Ohio St. 124; Ingle v. Culbertson, 43 Iowa, 265; McQuie v. Peay, 58 Mo. 56; Adams & Durham's Real Estate Statutes and Decisions of Illinois, 202, 1702; Pardee v. Lindley, 31 Ill. 174; Wilson v. McDowall, 78 id. 514.
In equity, any deed, although an absolute conveyance in terms, if it be devised for the purpose of securing the payment of money, is a mortgage. Hughes v. Edwards, 9 Wheat. 489; Conway's Ex'rs v. Alexander, 7 Cranch, 218; Villa v. Rodriguez, 12 Wall. 323; Flagg v. Mann, 2 Sumn. 486; Coote, Law of Mortgages, p. 11; Story, Eq. Jur., sect. 1018. Doubtful instruments are so construed. Bright v. Wagle, 3 Dana (Ky.), 252; Edrington v. Harper, 3 J. J. Marsh. (Ky.) 354; Conway's Ex'rs v. Alexander, supra; Holmes v. Grant, 8 Paige (N. Y.), Ch. 243; Horn v. Keteltas, 46 N. Y. 605.
There are, under the laws of New York, three methods of foreclosing a mortgage. Since the judicial proceedings in Illinois demand that the 'trust-deed' be construed as such an instrument, either one of these methods must be adopted for that purpose, or the equity of redemption remains. They are: by the decree of a competent court; or by the proceedings prescribed in pt. iii. c. 8, tit. 15, of the New York Revised Statutes, commonly called foreclosure by advertisement; or by lapse of time, as by the failure of the mortgagor to enforce his remedy against a mortgagee in possession for more than twenty years, by analogy to the Statute of Limitations. Hughes v. Edwards, 9 Wheat. 489; Demarest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129; Lawrence v. Farmers' Loan & Trust Co., 13 N. Y. 200.
It is not pretended by Robinson that proceedings in conformity with any of these requirements were taken to foreclose Shillaber's equity of redemption.
Noble was, by the provisions of the decree and deed, directed to give such reasonable notice as is usual or provided by law in New York. 'Usual' must be regarded as identical with 'provided by law.'
'Or' has the same meaning as 'and,' when such a construction is necessary to effectuate the intention of the parties. Maxwell on the Interpretation of Statutes, 216; Potter's Dwarris on Statutes and Constructions, 286, 292; Fowler v. Padget, 7 T. R. 509; Roome v. Phillips, 24 N. Y. 463, Arnold v. Buffum, 2 Mas. 208.
Trustees are bound to comply strictly with the requirements of the instrument originating and defining their power and authority. 1 Hilliard, Mortgages, 143; Hill, Trustees, 474, Thornton v. Boynton, 31 Ill. 200; Hull v. Towne, 45 id. 493, Griffin v. Marine Co., 52 id. 130; Strother v. Law, 54 id. 413, Jencks v. Alexander, 11 Paige (N. Y.), Ch. 619; Tarascon v. Ormsby, 3 Litt. (Ky.) 404; Wallis v. Thornton, 2 ...