side. Opinion of the court. The bill was taken pro confesso as to Clark and wife, and the case stood upon the bill and answer as to Few. The court decreed that all the defendants should be forever barred and foreclosed of their right of redemption in the mortgaged premises. The decree does not find either the fact or the amount of the alleged indebtedness. It is silent upon the subject. The record shows no proceeding in relation to it. No time was given either to Mrs. Clark or her trustee within which to pay and redeem. The foreclosure was unconditional, and was made absolute at once. The appeal is prosecuted to reverse the decree. In our view of the case it will be sufficient to consider one of the numerous objections insisted upon by the counsel for the appellants. The sale and conveyance by the marshal transferred the entire interest of Jeremiah Clark in the mortgaged premises to Reyburn, but it did not in any wise affect the equity of redemption which had been vested in Few by the trust deed of Clark and wife to him.* The equity of redemption would have been barred and extinguished by the decrce which ordered the premises to be sold if the proper parties had been before the court when it was made. The bill in that case having been dismissed as to Mrs. Clark and Few, the proceedings left their rights in full force. They were before the court in the case now under consideration, and the trust estate was then for the first time liable to be affected by its action. If there was a balance of the debt secured by the mortgage still unpaid, they were properly proceeded against, and the complainant was entitled to relief. The question to be considered relates to the character of the decree. Can a decree of strict foreclosure, which does not find the amount due, which allows no time for the payment of the debt and the redemption of the estate, and which is final and conclusive in the first instance, be sustained? The equity of redemption is a distinct estate from that VOL. VIII. *Childs v. Childs and others, 10 Ohio State, 339. 21 Opinion of the court. which is vested in the mortgagee before or after condition. broken. It is descendible, devisable, and alienable like other interests in real property.* As between the parties to the mortgage the law protects it with jealous vigilance. It not only applies the maxim "once a mortgage always a mortgage," but any limitation of the right to redeem, as to time or persons, by a stipulation entered into when the mortgage is executed, or afterwards, is held to be oppressive, contrary to public policy, and void. By the common law, when the condition of the mortgage was broken, the estate of the mortgagee became indefeasible. At an early period equity interposed and permitted the mortgagor, within a reasonable time, to redeem upon the payment of the amount found to be due. The debt was regarded by the chancellor, as it has been ever since, as the principal, and the mortgage as only an accessory and a security. The doctrine seems to have been borrowed from the civil law.† After the practice grew up of applying to the chancellor to foreclose the right to redeem upon default in the payment of the debt at maturity, it was always an incident of the remedy that the mortgagor should be allowed a specified time for the payment of the debt. This was fixed by the primary decree, and it might be extended once or oftener, at the discretion of the chancellor, according to the circumstances of the case. It was only in the event of final default that the foreclosure was made absolute. In this country the proceeding in most of the States, and perhaps in all of them, is regulated by statute. The remedy thus provided when the mortgage is executed enters into the convention of the parties, in so far that any change by legis lative authority which affects it substantially, to the injury of the mortgagee, is held to be a law "impairing the obligation of the contract" within the meaning of the provision of the Constitution upon the subject.‡ At the date of the execution of this mortgage the act of * 1 Powell on Mortgages, 252; 2 Greenleaf's Cruise, 128. +2 Greenleaf's Cruise, 77-78; Spence's Equity Jurisdiction, 601-603. Bronson v. Kinzie, 1 Howard, 311; Williamson v. Doe, 7 Blackford, 13. Opinion of the court. the territorial legislature of Kansas of 1855, "concerning mortgages," was in force. It directed that in suits upon mortgages the mortgagee should recover a judgment for the amount of his debt, "to be levied of the mortgaged property," and that the premises should be sold under a special fieri facias. But it also provided that nothing contained in the act should be so construed as to "prevent a mortgagee, or his assignee or the representative of either, from proceeding in a court of chancery to foreclose a mortgage according to the course of proceeding in chancery in such cases."* This gave to the complainant in the case before us the option to proceed in either way. He elected to file a bill in equity. No rule of practice bearing upon the subject, established by the court below, has been brought to our attention. The 90th rule of equity practice adopted by the Supreme Court, directs that where no rule prescribed by this court, or by the Circuit Court, is applicable, the practice of the Circuit Court shall be regulated by the practice of the High Court of Chancery in England, so far as it can be applied consistently with the local circumstances and convenience of the district where the court is held. The equity spoken of in the Process Act of 1792, is the equity of the English chancery system.† Spence says: "At length, in the reign of Charles I, it was established that in all-cascs of mortgages, where the money was actually paid or tendered, though after the day, the mortgage should be considered as redeemed in equity as it would have been at law on payment before the day; and from that time bills began to be filed by mortgagees for the extinction or foreclosure of this equity, unless payment were made by a short day, to be named.”‡ The settled English practice is for the decree to order the amount due to be ascertained, and the costs to be taxed; * Statutes of Kansas of 1855, p. 509. † Robinson v. Campbell, 3 Wheaton, 212; Boyle v. Zacharie, 6 Peters, 648. Equity Jurisdiction, 603. Opinion of the court. and that upon the payment of both within six months, the plaintiff shall reconvey to the defendant; but in default of payment within the time limited, "that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of and in said mortgaged premises.' We have been able to find no English case where, in the absence of fraud, a time for redemption was not allowed by the decree. The subject was examined by Chancellor Kent, with his accustomed fulness of research. He came to the conclusion that the time was in the discretion of the chancellor, and to be regulated by the circumstances of the particular case; but he nowhere intimates that such an allowance could be entirely withheld.† The practice in Illinois is in conformity to these views. In the light of these authorities we are constrained to hold the decree in the case before us fatally defective. There is another point upon which we deem it proper to remark before closing this opinion. It was urged by the counsel for the appellants, as a further ground of reversal, that the children of Clark and wife, who are alleged to be beneficiaries under the trust deed, were not before the court. It does not appear by anything in the case that there were such children in esse. If the facts were as alleged, it is clear that they should have been made parties. Otherwise their right to redeem could not be taken away by the decree. A decree against the trustee alone does not, in such a case as this, bind the cestui que trusts.§ The decree is REVERSED, and the eause will be remanded to the court below for further proceedings IN CONFORMITY TO THIS OPINION. * 2 Daniel's Chancery Practice, 1016; 1 Seton on Decrees, 346. † Perine v. Dunn, 4 Johnson's Chancery, 140. Johnson v. Donnell, 15 Illinois, 97. Collins v. Loftus & Co., 10 Leigh, 5; Calvert on Parties, 121. Statement of the case. THE LADY FRANKLIN. 1. A bill of lading given by a person who was agent of several vessels all alike engaged in transporting goods brought to certain waters by a railway line, but having separate owners, and not connected by any joint undertaking to be responsible for one another's breaches of contractthe bill, through mistake of the agent, acknowledging that certain goods had been shipped on the vessel A., when, in fact, they had been previously shipped on vessel B., and a bill of lading given accordinglywill not make the vessel A, responsible, the goods having been lost by the vessel B., and the suit being one by shippers of the merchandise against the owner of the vessel A., and the case being thus unembarrassed by any question of a bonâ fide purchase on the strength of the bill of lading. 2. While a bill of lading in so far as it is a contract, cannot be explained by parol, yet being a receipt as well as a contract, it may in that regard be so explained, especially when used as the foundation of a suit between the original parties to it. APPEAL from the Circuit Court for the Northern District of Illinois, in which court King & Co. had libelled the propeller Lady Franklin, for non-delivery of certain flour. The libel alleged, that the libellants, in the month of November, 1863, by their agent, Edward Sanderson, delivered at Milwaukee, to the steamer Lady Franklin, 340 barrels of flour, to be transported to Port Sarnia, on the St. Clair River, for which shipment they received a bill of lading, but that 290 barrels of the flour were never delivered. As a consequence, they claim a maritime lich on the vessel for the value of the flour. The answer denied that the flour in controversy was ever delivered to the master, or shipped on board of the steamer. The case was this: There was, in 1863, a line of steamers engaged in the lake service from Milwaukee to Port Sarnia, and running in connection with the Grand Trunk Railway. The Lady Franklin was one of them. But each boat had separate owners, and there was no joint undertaking that any one of the boats should be responsible for the breach of a contract or misconduct of another. This line of steamers had a particular |