The Chancellor.
Is the deed from Comstock to Howard a mortgage to Howard in trust for Stewart? If it is a mortgage, and not a common deed of trust by a debtor for the benefit of a creditor, Comstock has a right to redeem, on paying Stewart what is due on the judgment.
Chancellor Kent defines a mortgage to be the conveyance of an estate, by way of pledge for the security of a debt, and to become void on the payment of it. 4 Kent Com. 135. The deed, on its face, purports to be given as security for the payment of the judgment, and Howard is not authorized to sell generally, but only on the happening of a contingency, viz: the non-payment of the judgment within six months. The fact that the debt is due to Stewart, instead of Howard, does not make it any the less a mortgage. It is not unusual for mortgages to be given to one person in trust for another. 1 Madd. Ch. 514; 4 Kent Com. 146; Clay v. Sharp, 18 Ves. R. 346, note. To have barred the complainant’s equity of redemption, Howard should have foreclosed the mortgage, either at law, by advertising and selling under the statute, or in this Court by bill.
It appears that a part of the judgment has been collected on one or more executions. There must, therefore, be a reference to a Master to ascertain the amount still due on the judgment, and all further questions are reserved until the coming in of the report.