William Burnham Woods

“ In view of the declaration of trust made by Walker on April 12, 1875, it is clear that the transaction between Flagg and Walker was not a mortgage. A mortgage is a deed whereby one grants to another lands, upon condition that if the mortgagor shall pay a certain sum of money, or do some other act therein specified, at a day certain, the grant shall be void. ”

“ A mortgagor, or other creditor, has not, therefore, in every case the right to insist that the court shall order a sale. It is settled by the decisions of that court that when the property is of less value than the debt for which it is mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of the debt, the court is justified in decreeing a strict foreclosure, unless there are other incumbrancers, purchasers of the equity of redemption, or creditors, to object. ”

“ The last objection to the decree of the circuit court is that it included the amount paid by Walker for the mortgage or trust deed upon the 'homestead,' with the advances made by him and the expenses incurred in the management of the trust, and decreed a strict foreclosure for the whole sum upon all the property. The contention of appellants is, that for the sum paid by Walker for the purchase of this mortgage he should be limited for his security to the property covered by the mortgage. ”