purchaser of the land under the sale would hold it subject to the mortgagor's right of redemption: Thornton v. Pegg, 24 Mo. 247.

There is a reason why in an action on the note he would be entitled to recover the full amount, namely: a court of law cannot take cognisance of equities that in a court of chancery would not only be recognised, but rigorously enforced. The books are full of cases where a judgment has been rendered in a law court against a defendant one day, and the same judgment enjoined by a court of chancery the next. It is true that the principles governing and controlling a court of chancery are as fixed and certain as are those which control a court of law, and one of those principles is, that he who invokes its equitable powers must be ready to do equity.

But this discussion has already been protracted to a sufficient length. What was the equity of the mortgagor in this case? What relation did Jacob B. Carpenter sustain to the wheat and flour received by him as security in addition to the mortgage, and how far is the complainant affected thereby. We think it was a pledge. The contract of pledge is a bailment or delivery of goods and chattels by one man to another to be holden as a security for the payment of a debt or the performance of an engagement and upon the express or implied understanding that the thing deposited is to be restored to the owner as soon as the debt is discharged or the engagement has been fulfilled. The contract is to be distinguished from the contract of hypothecation, by the transfer of the possession or the delivery of the thing intended to be charged to the creditor; and from the contract of mortgage by the absence of a transfer of the ownership or right of property therein in the pawnee during the continuance of the trust. If the thing intended to be burthened with the debt or charge remains in the possession and under the disposition of the owner there is no pledge. By a pledge, therefore, of the goods and chattels the right of possession is altered, but not the right of property.

Were the wheat and flour in the possession and under the control of Jacob B. Carpenter? He had the receipt of the warehousemen for it. Mahala Lougen could not have conveyed the same to any one, freed and discharged from his lien upon it. Miller & Williams, the warehousemen, were liable to him on their receipt, for the amount expressed in it. If any one had carried away and

converted the wheat to his own use, Carpenter could have maintained an action for it, and the production of the receipt in evidence would have been proof of his title. Part of this wheat and flour, while in the possession and under the control of Jacob B. Carpenter, and before the assignment of the note, was sold, and the money paid to Miller & Williams his depositaries. He recognised them as his agents by accepting their receipt. And the money paid to them for the wheat and flour sold, was equally under his control, and could have been collected by him. If he failed to apply this money to the payment of the note and mortgage, and allowed it to remain in their hands until it was dissipated and squandered, he must suffer the loss; not Mahala Lougen, who had no right to the possession of it. And if, in an action by Jacob B. Carpenter, Mahala Lougen would have been entitled to recoup the amount of money paid to Miller & Williams for the wheat pledged, under the rule we have announced in this opinion, his assignee stands in no better position, and this money so paid must operate as a satisfaction pro tanto of the note and mortgage.

For the failure of the court below to allow credit on the mortgage for the wheat sold prior to the assignment of the note, this case must be reversed and remanded. It is accordingly reversed with costs, for further proceedings in accordance with this opinion.

HALLETT, C. J., dissenting.-The nature of a mortgage and its relations to the indebtedness it is intended to secure, are pretty well understood at this day and do not demand much discussion. In Martin v. Mowlin, 2 Burr. 978, Lord MANSFIELD said: "A mortgage is a charge upon the land, and whatever will give the money will carry the estate in the land along with it to every purpose. The estate in the land is the same thing as the money due upon it."

So also KENT, C. J., in Jackson v. Willard, 4 Johns. 43: "Until foreclosure, or at least until possession taken, the mortgage remains in the light of a chose in action. It is but an incident to the debt, and in reason and propriety, it cannot, and ought not to be, detached from its principal. The mortgage interest, as distinct from the debt, is not a fit subject of assignment. It has no determinate value. If it should be assigned,

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the assignee must hold the interest at the will and disposal of the creditor who holds the bond. Accessorium non ducit sed sequitur principale.'

To the same effect are all the authorities, and no one can now be found to question the doctrine, that a mortgage is a mere incident to the indebtedness it is intended to secure, inseparable from it and incapable of existence without it. It is a truism of the law, that a mortgage is a security for indebtedness, accompanying the latter through all hands, and ultimately sharing the same fate. This rule, which identifies the security with the indebtedness, in my opinion, requires that the remedy upon the security shall be co-extensive with that on the debt. When this is denied the mortgage is divested of its character as a security to the extent of such denial. By the mortgage contract a lien is given upon property for the payment of certain indebtedness, and if the indebtedness be withdrawn from the lien, or if the existence of the lien be denied for causes dehors the mortgage, that instrument is divested of its essential quality in the face of its express provisions. That is no security for indebtedness which will not come up to the point of contributing to its payment, and a mortgage intrinsically good, which falls short of the measure of its principal, is a paradox unknown to the law. To illustrate, let us look for a moment at the present case. A negotiable note, secured by mortgage, was endorsed to appellee before maturity upon a valuable consideration. It does not appear that the pledged property was delivered to appellee, or that he had any knowledge of it; so that no notice need be taken of that feature of the case. Neither law nor equity will deny to the appellee, as a bona fide holder for value, the full amount of the note, when that instrument is presented. But it is said that the action being to foreclose the mortgage, the amount of the note must be diminished by the sum received by the payee or his agents before the assignment to appellee. The mortgage is in itself valid and effectual, according to its legal character, as a security for the indebtedness evidenced by the note. The note is intrinsically good, and in the hands of the appellee constitutes a demand against the appellant for the amount expressed upon its face. Each instrument is perfect in itself; the one as a demand against appellant, other as security for that demand, and yet when united, and a remedy to enforce the lien is sought, the security of the mortgage is denied

as to a portion of that demand. In other words, the mortgage has ceased to be security as to part of the indebtedness evidenced by the note, its express provisions to the contrary notwithstanding. It appears to me that the mortgage having been made as a security for the payment of the note, it ought to stand as a security for the whole note, extinguishable only upon payment of the whole amount recoverable upon it. Any other view is opposed to the rule which unites the mortgage to the indebtedness inseparably, and gives to them a common existence. this connection I will ask attention to the language of the Supreme Court of Wisconsin upon this subject:

"The doctrine that an assignee can enforce the mortgage for no more than is justly and actually due between the mortgagor and the mortgagee had its origin at a time when the practice of giving mortgages as collateral security for the payment of negotiable paper was wholly unknown, and was made to rest upon the ground that such would be the rule adopted in a suit at law, upon the covenant or bond to which the mortgage was collateral; and the assignee should stand no better in equity than at law. The reason of the rule being, that because in a suit at law for the use of the assignee upon the bond or covenant, to collect the debt, a recovery cannot be had for a greater sum than is actually due from the mortgagor to the mortgagee, therefore no more shall be recovered in equity in an action to foreclose the mortgage; or that the parties as to rights and remedies shall stand upon the same footing in both courts: it follows as a logical conclusion, that when the nature of the instrument evidencing the debt and the circumstances of the transfer are such that in a suit at law upon it against the mortgagor, the assignee can enforce its payment regardless of any equities existing between the mortgagor and mortgagee, he should have the same rights and remedy in equity. The reason of the rule ceasing in the case of negotiable securities, transferred before maturity and without notice, the rule also ceases. The debt is the principal thing, the mortgage the incident. The transfer of the debt carries with it the mortgage. It is the debt which gives character to the mortgage, and fixes the rights and remedies of the parties under it, and not the mortgage which determines the nature of the debt:" Croft v. Bunster, 9 Wis. 509. See also Dutton v. Ives, 5 Mich. 519; Reeves v. Scully, Walker's Ch. 248.

Another consideration of great weight ought not to pass unnoticed. It is conceded that the appellee may recover in an action at law upon this note, that portion of his demand which is denied to him in this proceeding. It was said by HOSMER, C. J., in Clark v. Beach, 6 Conn. 159, "The equitable doctrine, concerning the rights of mortgagor and mortgagee, has gradually been naturalized in the common-law code; and by the adoption of principles long established in chancery, and tenaciously adhered to, the suitors are not driven from one bar by increased litigation and expense to obtain infallible relief at another."

The policy of the law, here defined, has not, I think, been heeded in this case. The appellant is protected from the payment of a portion of the appellee's demand to which she must hereafter respond in a court of law; while the appellee is driven from this bar by increased litigation and expense to obtain infallible relief at another.

The case of Olds v. Cummings, 31 Ill. 188, is the authority upon which the decision of this court is based, and that case is grounded upon the assumption that a foreclosure suit is brought upon a mortgage only. The court in that case say: "The note itself, though secured by a mortgage, is still commercial paper, and when the remedy is sought upon that, all the rights incident to commercial paper, will be enforced in the courts of law. But when the remedy is sought, through the medium of the mortgage, when that is the foundation of the suit, and the note is merely used as an incident to ascertain the amount due upon the mortgage, then the courts of equity, to which resort is had, must pause and look deeper into the transaction, and see if there be any equitable reason why it should not be enforced."

Upon this, I am of opinion, that a foreclosure is founded upon the indebtedness, as well as the mortgage. A court of equity will not, and in the nature of things cannot permit a mortgagee to recover unless he is the holder of the indebtedness, secured by the mortgage: 1 Hilliard on Mortgages, Chap 2, s. 5.

Whether the proceedings be at law or in equity, the indebted ness is the principal thing, for both remedies are designed to enforce payment of the money. I concede that the remedy at law is upon the note alone, but it is equally plain that the suit in equity is founded upon the note and mortgage, and that each is essential to the right of recovery. The indebtedness is the