The opinion of the Court was drawn up by
Weston C. J.The counsel for the tenants objected to the legal admissibility of a certain declaration of Samuel Bachelder, testified toby Cotton Bradbury. Bachelder was the general agent of the tenants, and in 1833, appeared before the board of assessors in Saco, for the purpose of inducing them not to set the premises in question, in their assessment, to the company, against whom they had previously been taxed, stating as a reason, that they belonged to the Atlantic Bank, or that the fee was in them. And thereupon the change proposed, was made by the assessors. This declaration must be regarded as a part of the res gesta, and as such admissible. It was directly connected with the business he was transacting, and must necessarily have had an influence upon it. Büt if the law were otherwise, its bearing upon the question of title, which must depend upon other evidence, is so slight, that it would deserve *199serious consideration, whether the verdict ought to be disturbed upon this objection.
It is contended, that the power of attorney to George Thacher, Esq. to take possession of the demanded promises, for the purpose of foreclosure was not made by competent authority. It is a document full and formal in its terms, executed by the President of the Bank, claiming to act in their behalf. By the seventh article of the by-laws of the stockholders, it is provided that the president and cashier, being authorized by a vote of the directors, may execute any of the powers given to the directors by attorney. And by the fifth article of the directors’ by-laws a general superintendence of the concerns of the bank is confided to the president.
The necessity of resorting to the aid of an attorney, is of ordinary occurrence, and the president and cashier are the usual and accredited organs of a bank in much of its business. The pros■ecution of legal remedies on bonds, drafts, notes or other securities over due, must often become necessary in a bank having a large capital and discounting extensively. There might he a convenience in clothing the president or cashier with the power of resorting to these remedies, with such incidental authority, as their ■effectual prosecution might require. Taking possession of estates mortgaged, for the purpose of foreclosure as the law then stood, is •one of these remedies.
It is not unlikely, that by a practical construction of their by-laws, it was understood, that the president had power, in virtue of the right given him of general superintendence to appoint an attorney to enter and take possession of an estate to foreclose a mortgage. Whether such a deduction of authority can be legally sustained or not, we deem it unnecessary to decide, as by the agreement, under the seal of the parties, bearing date, July 1, 1832, and which is admitted by the tenants to have been duly executed on behalf of the bank, as well as of the company, the entry made upon the premises, for the purpose of foreclosure, is expressly recited and the president, directors and company of the bank covenant to cause that entry to be made effectual. By the same instrument, the company were to lend their aid to that measure; and upon the contemplated consummation of the foreclosure, the bank *200covenanted to convey the premises to the tenants. If there was before any want of authority, the entry, and the power under which it was made, was by that agreement adopted and confirmed. And this was done with the privity, consent and cooperation of the tenants.
With regard to the instructions requested they appear to us to have been properly withheld. Delivery is essential to a deed. The party executing it is not bound, so long as he keeps it under his own control and possession. Chadwick v. Webber, 3 Greenl. 141. The fact that the deed was prepared by the counsel for the tenants, does not dispense with delivery. It may be evidence, that they would have accepted it, and that they desired its execution, but delivery is the act of the- party who executes, and it must be done with a view to give the deed effect.
A motion is made to set aside the verdict as against evidence or the weight of evidence. The jury responded, that they were not satisfied that the instrument dated December 14th, 1833, was executed and delivered prior to the tender on the 17th; and further, that they were not satisfied, that it was -executed, that is, as we understand their answer, signed and sealed, on that day. Of this latter fact, the direct evidence is strong. But upon this part of the case the question is, whether it was an operative and effectual instrument, prior to the seventeenth of December, when the money secured to the Atlantic Bank was paid by the demandant, and a reassignment of the mortgage executed.
It is insisted, that the production of the instrument by the tenants is evidence of a delivery, which is to be referred to the day of its date. Such might be the effect of this evidence, if there were no opposing proof. But it is competent to show, that possession of the deed was obtained improperly, and against the will of the party, whose signature and seal are affixed. The true time of delivery is also open to inquiry, notwithstanding its date. Benj. Dodd deposes, that he saw this paper which he witnessed, signed, sealed and delivered, but he does not say to whom delivered, or whether to any one in behalf of the tenants. Mr. Goodwin positively testifies, that the instrument was in the hands of the president of the bank in Boston, on the 20th of December, with some writing on the blank leaf, which he was not permitted to see, and which has been *201since torn off. This testimony justified the answer of the jury, that they were not satisfied, that it was executed and delivered prior to the seventeenth, when the money was tendered by the demandant.
But it is urged, that the interest of the demandant bad vested absolutely in the bank, in trust for the tenants, long prior to the payment or tender by him. And this assumption is upon the ground, that the demandant’s interest in the mortgage was personal property, and that upon bis assignment to the bank by way of mortgage, they became the absolute owners, upon his failing to pay within the time, limited in the condition of that assignment.
Many of the authorities, cited for the tenants, treat a mortgage as a mere incident to the debt it is intended to secure, and as standing in the relation of an accessary to its principal. We are not however prepared to say, that he who mortgages an interest in real estate, which he holds himself in mortgage, is not entitled to the statute period of three years, after breach of condition, before his interest can be foreclosed. Stat. 1821, c. 39. The statute is broad enough in its terms to embrace such a case, and an equity of redemption is a favored claim. But from the view we have taken of the case, we do not deem it necessary to decide this point.
The doctrine in relation to a mortgage of personal property, is very clearly laid down by Mr. Justice Story in his commentaries, to which we refer, without adverting to the anthorities, by which he is sustained. He says, a mortgage of personal property differs from a pledge. The former is a conditional transfer or conveyance of the property itself; and if the condition is not duly performed, the whole title vests absolutely at law in the mortgagee, exactly as it does in the case of a mortgage of lands. 2 Story on Eq. 296, § 1030. He adds, that in mortgages of personal property, although the prescribed condition has not been fulfilled, there exists as in mortgages of land, an equity of redemption, which may be asserted by the mortgagor, if he brings his bill to redeem, within a reasonable time. lb. 297, § 1031. That the right to redeem was open to the demandant, when he paid the money, is deducible from the fact, that the bank, and in concert with them the tenants, treated the assignment of the mortgage as security only, by prosecuting a suit against the demandant, for the principal debt thus secured which was not discontinued until after they had received their money.
*202If they had a right to hold, and did hold, the collateral security as absolutely their own, it being of sufficient value their debt was paid. Their suit for the debt is, by fair implication, an admission that the equity of the demandant was still open, and his right to redeem not foreclosed. Whether therefore the mortgage assigned to the bank is to be regarded as personal property, or an interest in real estate, we are of opinion, that the demandant had a right to redeem, when he paid the money for that purpose to the bank.
It has been argued, that the agreement, under the date of July first, 1832, although executed in fact on the fourteenth of December, 1833, vested the beneficial interest in the debt, due from the demandant to the bank as well as the collateral security, in the tenants, by relation from the time of its date ; and that it operated as a waiver of the entry to foreclose against the assignees of Richard Cutts, thirteen fifteenths of whose interest had been purchased by the tenants. But it is very manifest, from the terms of that agreement, that the tenants at that' time deemed it for their interest to keep up and consummate the entry, which had ■been made for foreclosure. Although antedated, four days only were in fact wanted to complete that consummation. Perhaps nothing was then less expected, than the actual payment of the money, which was not a small sum, within that short period by the demandant. But to be prepared at all events, a formal waiver of the entry was executed, as the evidence shows at the same time, not very consistent with some of the avowed objects of the other instrument. As they had different dates, this discrepancy would not be apparent, and both together afforded the means of proving or disproving a foreclosure, as might be most for the interest of the tenants.
We do not mean to be understood, that any thing morally wrong was designed. The demandant would still be secure in all, to which he was equitably entitled. If the foreclosure took effect, his debt was paid; if it did not, it would remain a lien upon the ■estate. The appreciation in value, the tenants were doubtless ■anxious to secure to themselves, it having been created, as they allege, by their operations. It turns out, that they were not able to ■prove affirmatively, which they were bound to do, the seasonable ■delivery of the instrument of waiver. It does not appear that *203counsel was consulted subsequently to the time, when the paper was drafted in Saco, two days prior to its date, and it may have been thought, that it might, safely be retained by the bank, as a paper not likely to be wanted.
It is said, that it could not be the intention of the contracting parties to the agreement, dated July, 1832, to keep up the entry made by Mr. Thacker, against the tenants, for whose benefit that agreement was made. That entry was to foreclose the mortgage, executed by Richard Cutts. It must have been understood also to have the effect of foreclosing the demandant. This is to be inferred from the terms of the paper, dated December fourteenth, 1833. But as a waiver of the entry against the assignees of Richard might defeat a foreclosure of the demandant, which if effectual became, such as an incident to that entry, the instrument of July, which is elaborately drawn, provided for a consummation of that entry generally. If the tenants have been disappointed in the results, they cannot, in our opinion, escape from the difficulties, in which they have become involved, by deducing a waiver of the entry from the agreement of July, without doing violence to the obvious meaning of its terms.
We cannot understand, that the reassignment, the day before the three years expired, interrupted or arrested the foreclosure. The entry having been made by the assignees of the demandant, between whom and himself there was a direct privity, continued to be available for his benefit. It would be unreasonable to hold, that he must begin de novo.
The motion for a new trial is overruled.