MARTIN v. Pom). 17
of this suit, and it is also true that delivery and acceptance are generally
essential to the transfer and vesting of title. No man is forced to be-
_ come the owner of land without his consent. But, as between Pond on
the one hand, and Mendenhall and Wolford on the other, the latter, at
the time of the loan, held the entire title, and, after they had directed
the execution of the bond to Beede, they were, as against Pond, es-
topped from saying that Beede did not hold the equity of redemption,
and this,,whether Beede knew of their action or not. Pond, by proper
proceedings against Beede, would cut off all their rights and interests as
well as Beede’s, and it was not necessary for him to prove knowledge
and acceptance by Beede. If they put up a man of straw, they will
not be heard to say that he is not one of fiesh and blood. It is also .
entirely immaterial that the deed from Mendenhall to Wolford was only
intended as a mortgage, or whether Pond knew this fact, for all title,
legal and equitable, was vested, in Wolford and Mendenhall, and the
conveyance was made by one with the knowledge and consent and at the
instance of the other. Wolford held this tract, as he did others, hold-
ing the legal title with theright to convey, and when he madela convey-
ance, under circumstances authorizing it, the grantee took the, title.
Jcwkacm v. Ldwrence, 117 `U. S. 679; S. C. 6 Sup. Ct. Rep. 915. ,, In
that case a deed was executed as security for a debt. The grantee was
authorized to sell on non—payment. He did sell, and his grantee was
adjudged the holder of the perfect title, and free from the lien of an
attachment issued against the debtor and first grantor, and levied upon
the property prior to the sale and conveyance to the last grantee; and, in `
the course of the opinion, the supreme court say that it is entirely im-
material whether such purchaser and last grantee knew all the facts or
not._ In view of that decision, it may, at least, be doubted whether
Beede had any interest in the land or equity of redemption other than
that acquired under this bond. *
The next question is as to the validity and sufltioiency of the foreclos— _
ure proceedings,-one or both; for, if either is good, the other may be
disregarded. It is insisted by complainant that the foreclosureof a
A mortgage is a personal action, and not one in rem., and impliedly that
service on a defendant must be personal, and cannot be by publication,
(Hart v. Samcm, 110 U. S. 151; S. C. 3 Sup. Ct. Rep. 586;) that, even
if this be not correct, no sufficient aiiidavit for publication was nled, and
therefore the service by publication was unauthorized, and insuflicient
~ to bring the defendants into court; and, finally, that, ifdefendants were
brought in, the proceedings were only for the foreclosure of the mortgage
. created by the deed and bond, and did not out off the equity of redemp-
tion acquired under the Van Valkenburg sale.
I cannot assent to either of these propositions. A foreclosure in the
A form in which it is ordinarily prosecuted is really, in its nature,»partly
an action in rem, for the seizure and sale of the property, and partly in
personam, for the ascertainment of the debt of themortgagor, and aper-
sonal judgment against him. In Waples on Proceedings in Rem, § 607.
the author says: - t l 1
v.301·.no.1—2