Hutzler Bros. v. Phillips

Mr. Justice McIver.

I am not prepared to assent to the proposition that an equitable mortgage can be created in this State by a deposit of title deeds, even where such is the intention with which the deposit is made; for I do not understand that this doctrine has ever been expressly established here by either of the cases cited as recognizing it. The policy of our law is to discountenance secret liens and, as a rule, to recognize those only which are spread upon the records for the information of the public generally. In the absence, therefore, of any express authority here, I am not willing to recognize the doctrine.

Whether Cohen & Co. can make a case which will entitle them to a decree for specific performance of the alleged agreement of C. Phillips to give the mortgage, as against the plaintiff s in this case, creditors, is a question which was not considered or determined by the Circuit Court, it being unnecessary to do so under the view there taken, and therefore is not now properly before us. Hence I am quite willing that the case should go back for the determination of that question, but without any intimation whatever by this court as to its opinion on any of the points involved in that question, either as to the effect of the advance of the money upon the faith of the promised mortgage, the voluntary execucution of it by the heirs of C. Phillips after his death, or any other matter involved. I, therefore, concur in the result only.

Judgment reversed.