They are also to be distinguished from leases and the transaction is frequently held to be a mortgage where the form appears to be a lease ; Lanfair v. Lanfair, 18 Pick. (Mass.) 299; Barroilhet v. Battelle, 7 Cal. 450 ; but in this also the intention of the par ties will prevail ; Stockton v. Dillon, 66 N. J. Eq. 100, 57 Atl. 487; and there must be evidence to show that the instrument was not intended to be a lease as it purported to be ; Packard v. Corp. for Relief of Widows, 77 Md. 240, 26 Atl. 411; and where a lease is made for a price it will not be converted into a mortgage because the rent is to go in satisfaction of a debt ; Halo v. Schick, 57 Pa. 320.
So they are distinguished from trusts, anu a deed conveying land to creditors in trust to sell it and pay certain debts, including the grantee's in the deed, is in effect a mort gage ; Morgan v. Glendy, 92 Va. 86, 22 S. E. 854; but not where the surplus after pay ment of the debt was to go to the grantor ; Koch v. Briggs, 14 Cal. 256, 73 Am. Dec. 651: Deeds of trust to secure the payment of debts do not differ in legal effect from mort gages with power to sell ; McLane v. Pasch al, 47 Tex. 365 ; Thompson v. Marshall, 21 Or. 171, 27 Pac. 957.
A mortgage differs from a pledge: the gen eral propetty passes by a mortgage, whilst by a pledge only the possession or, at most, a special property, passes. Possession is in separable from the nature of a pledge, but is not necessary to a mortgage ;• Perry v, Craig, 3 Mo. 516 ; Barrow v. Paxton, 5 Johns. (N. Y.) 258, 4 Am. Dec. 354; Ferguson v. Thomas, 26 Me. 499.
The essence of a pledge is that the gran tee says to the grantor: I will lend you mon ey if and when you deposit certain goods with me. It is not (as in a mortgage): I will lend you money on the security of an author ity to take possession of certain goods ; 1? Q. B. D. 690.
Assignment of Mortgages at common law.
or under statutes merely providing for the registration of deeds for the purpose of no tice, must be by deed only, in order to oper ate at law as an assignment of the mort gagee's interest in the land ; Stanley v. Creelman, 14 Can.. Sup. Ct. 33 ; Morrison v. Mendenhall, 18 Minn. 232 (Gil. 212); Den v. Dimon, 10 N. J. L. 156 ; Givan v. Doe, 7 Blackf. (Ind.) 210 ; Graham v. Newman, 21 Ala. 497; and in a previous Maine case it was held that a valid assignment must be in writing, signed by the party charged; Lyford v. Ross, 33 Me. 197. The difference
between these two classes of cases doubtless arises merely from the point of view ; those which require an assignment by deed deal ing with the transaction as the conveyance of an interest in the land, and those which merely require that it be in writing having in view the satisfaction of the Statute of Frauds. The latter view is taken by Shep ley, e. J., in the last cited Maine case ; while in Young v. Miller, 6 Gray (Mass.) 152, Shaw, C. J., held that the endorsee of notes secured by a mortgage could not maintain a writ of entry without a formal assignment of the mortgage. Whether such assignment should be by deed, or in writing merely, was not suggested though the decision seems to re quire that it should be based upon the theory that an assignment was necessary for the transfer of the title of the mortgagee to the land and therefore would necessarily be by deed. In Barnes v. Boardman, 149 Mass. 106, 21 N. E. 308, 3 L. R. A. 785, it was held that an assignment of the mortgage and of the debt described therein, without words of in heritance, was sufficient to vest in the as signee the title of the mortgagee.
In Canada, as appears supra, a deed is required, and "assign, transfer, and set are said to be the proper technical words ; Watt v. Feader, 12 U. C. C. P. 254 ; and in Austin •v. Boulton, 16 U. C. C. P. 318, the words "bargained, sold, assigned and trans ferred" unto the assignee, "his heirs and as signs, the annexed mortgage, and all the right, title and interest therein," of the as signor, "to have and to hold the same unto the said . . . her heirs and assigns, to his and their sole use for ever," did not pass the interest in the land ; and to the same effect ; Wright v. Sperry, 21 Wis. 331, where it was held that an assignment "of the mort gage" did not convey the legal estate in the land; but an assignment of the mortgage passes the legal title and no suit can subse quently be maintained thereon in the name of the assignor ; Pryor v. Wood, 31 Pa. 142 ; though where the granting part of the deed of assignment transferred the indenture sim ply, and the habendum the estate in the in denture, the estate passed ; Doe dem. Wood v. Fox, 3 U. C. Q. B. 134; but where the language was "do hereby assign . . . all my right, title and interest in and to the within mortgage," the land did not pass ; Moran v. Currie, 8 U. C. Q. B. 60.