Page:Harvard Law Review Volume 10.djvu/554

528 HARVARD LAW REVIEW, Property — Mortgages — Purchase of Equity of Redemption by Mort- gagee. — An equity of redemption was admittedly worth ;^45,5oo. The mortgagee in possession, intending to pay this sum if he could not get it for less, and knowing of the distress of the mortgagor, threatened to have the mortgage foreclosed, if the mortgagor would not sell her equity for ^19,000, which she did. In an action brought to set aside the sale, held, that the mortgagee might purchase the equity of redemp- tion as cheaply as he could get it. De Alartin v. Phelan, 47 Pac. Rep. 356 (Cal.). Although doubted in the earlier cases, it is now generally admitted that there is no such fiduciary relation between mortgagee and mortgagor as will preclude the mort- gagee from buying the equity of redemption from a mortgagor. Ten Eyck v. Craig, 62 N. Y. 406. But that he may purchase at so great a sacrifice is an entirely different question. No authority is cited by the principal case, and there ishttle if any authority to be found in the books in support of the decision. Transactions of this nature should be very carefully scrutinized by the courts ; and inasmuch as a mortgagee in posses- sion may exercise an undue influence over the mortgagor, especially if the latter is in needy circumstances, it seems only just that measures to prevent any oppression of the debtor should be taken. Fugkv. Davis, 96 U. S. 332; Oliver . Cunnijtgham, 7 Fed. Rep. 689. The fairness of the transaction must distinctly appear; Holdridge v. Gillespie, 2 Johns. Ch. 34 ; and the consideration must be an adequate one. Russet . Southard, 12 How. 154. See also Jones on Mortgages, §§ 711, 712, citing many cases contra to the principal case. Property — Mortgages — Void Conveyance of Full Legal Title by Mortgagee. — Held, that, where the mortgagee purchases the land at a void fore- closure sale, a deed by him which purports only to convey the legal title to the land has the effect of an assignment of the mortgage. Smithson Land Co. v. Brantigaiti, 47 Pac. Rep. 434 (Wash.). This is one of a large class of cases in which a purchaser whose title fails or becomes worthless gets the benefit of a right of the vendor though he did not know of its ex- istence. Several analogous cases may be mentioned. "When a note secured by a mortgage is sold, the benefit of the mortgage goes with it, though unknown to the purchaser. Jones on Mortgages, § 817. The purchaser at a void tax sale gets the benefit of the State's tax lien on the land. Reed v. Kalfsbeck, 45 N. E. Rep. 476. One who buys bonds which turn out to be void is allowed to enforce the rights of the original purchaser arising from failure of consideration. Tracy v. Talmage, 14 N. Y. 162 ; Irvine v. Comm^rs, 75 Fed. Rep. 765. While the word assignment is often used in such cases, a more strictly logical explanation seems to be that equity will relieve from accidental loss by making the seller a constructive ti-ustee of his rights for the benefit of the buyer. This is very closely allied to the theory of subrogation, by which the creditor is made constructive trustee for the surety. Property — Rule against Perpetuities. — The testator devised land to his grandchildren, and directed that trustees should invest the residue of his estate in a house, to be built on the land whenever the city determined a certain question of grading. Held, that the grandchildren could elect to take the money at once, and therefore the rule against perpetuities did not apply. In re Rogers' Estate, 36 Atl. Rep. 340 (Penn.). The question is similar to that considered in 10 Harvard Law^ Review, 446, whether a power of sale, which trustees may exercise for an indefinite time, is without the rule against perpetuities where the equitable fee is in a class. If in the principal case there had been but one donee, the money would have been at once in his abso- lute control. Thus the main object of the rule against perpetuities would have been satisfied, to prevent an interest from being uncertain for a long period, and thereby much lessened in value. Gray on Perpetuities, § 269. But here to get the fund the consent of all the grandchildren must be obtained, and if there are many this may be practically impossible. But what difficulty there is is practical, not theoretical, and it would hardly seem wise to say that in every case where the gift was to more than one the rule against perpetuities should apply. No other line could be drawn in deter- mining whether or not the interest was really in the control of each donee, and the decision of the court would therefore seem to be correct. Statute of Limitations — Interruption — Waiver. — A legatee was indebted to his testator's estate for a sum larger than his legacy. He confessed judgment on this claim in favor of the estate. A judgment creditor of his sought to attach the property bequeathed him, on the ground that the claim upon which he had confessed judgment was barred by lapse of time, and that he had no right to waive the Statute of Limitations to the prejudice of his other creditors. It was contended by the estate that the running of the statute had been interrupted by the payment of an assignee's