In equity, any deed, although an absolute conveyance in terms, if it be devised for the purpose of securing the payment of money, is a mortgage. Hughes v. Edwards, 9 Wheat. 489; Conway's Ex'rs v. Alexander, 7 Cranch, 218; Villa v. Rodriguez, 12 Wall. 323; Flagg v. Mann, 2 Sumn. 486; Coote, Law of Mortgages, p. 11; Story, Eq. Jur., sect. 1018. Doubtful instruments are so construed. Bright v. Wagle, 3 Dana (Ky.), 252; Edrington v. Harper, 3 J. J. Marsh. (Ky.) 354; Conway's Ex'rs v. Alexander, supra; Holmes v. Grant, 8 Paige (N. Y.), Ch. 243; Horn v. Keteltas, 46 N. Y. 605.
There are, under the laws of New York, three methods of foreclosing a mortgage. Since the judicial proceedings in Illinois demand that the 'trust-deed' be construed as such an instrument, either one of these methods must be adopted for that purpose, or the equity of redemption remains. They are: by the decree of a competent court; or by the proceedings prescribed in pt. iii. c. 8, tit. 15, of the New York Revised Statutes, commonly called foreclosure by advertisement; or by lapse of time, as by the failure of the mortgagor to enforce his remedy against a mortgagee in possession for more than twenty years, by analogy to the Statute of Limitations. Hughes v. Edwards, 9 Wheat. 489; Demarest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129; Lawrence v. Farmers' Loan & Trust Co., 13 N. Y. 200.
It is not pretended by Robinson that proceedings in conformity with any of these requirements were taken to foreclose Shillaber's equity of redemption.
Noble was, by the provisions of the decree and deed, directed to give such reasonable notice as is usual or provided by law in New York. 'Usual' must be regarded as identical with 'provided by law.'
'Or' has the same meaning as 'and,' when such a construction is necessary to effectuate the intention of the parties. Maxwell on the Interpretation of Statutes, 216; Potter's Dwarris on Statutes and Constructions, 286, 292; Fowler v. Padget, 7 T. R. 509; Roome v. Phillips, 24 N. Y. 463, Arnold v. Buffum, 2 Mas. 208.
Trustees are bound to comply strictly with the requirements of the instrument originating and defining their power and authority. 1 Hilliard, Mortgages, 143; Hill, Trustees, 474, Thornton v. Boynton, 31 Ill. 200; Hull v. Towne, 45 id. 493, Griffin v. Marine Co., 52 id. 130; Strother v. Law, 54 id. 413, Jencks v. Alexander, 11 Paige (N. Y.), Ch. 619; Tarascon v. Ormsby, 3 Litt. (Ky.) 404; Wallis v. Thornton, 2 Brock. 422; Gray v. Shaw, 14 Mo. 341; Smith v. Proven, 4 Allen (Mass.), 516; Roche v. Farnsworth, 106 Mass. 509.
Courts of equity are adverse to, and have ever been suspicious of, sales under a power in mortgages or trust-deeds, without notice to the mortgagor; and special requirements of notice in the deed itself, or the instrument originating the trust, have been enforced with the utmost rigor. Anonymous, 6 Madd. Ch. 10; Gill v. Newton, 12 Jur. N. S. 220; Major v. Ward, 5 Hare, 598; Longwith v. Butler, 3 Gilm. (Ill.) 32; Tarascon v. Ormsby, 3 Litt. (Ky.) 404; Flower v. Elwood, 66 Ill. 438; Bigler v. Waller, 14 Wall. 297; Jones, Mortgages, sect. 1822.
It is not necessary to make out a case of fraudulent connivance between Noble and the defendant, in order to entitle the appellant to the account which he desires. The appellee is a mortgagee in possession of the lands, and, as a trustee for the complainant, is bound to take the greatest care of the interests of the latter. When called on for an accounting, he must show that he has faithfully performed the duties of a trustee, in relation to the property. Story, Eq. Jur., sect. 1016; Bigler v. Waller, 14 Wall. 297; Russell v. Southard, 12 How. 139.
Had Robinson not sold and conveyed the property to innocent purchasers, Shillaber, on paying Robinson the amount due under the decree of the Illinois court, would have an unquestionable right to the lands.