Hancock, Administrator, v. Carlton. redeem such mortgage at any time within three years after the breach, and during that period there would be no such merger. Such merger or unity of estate would only arise when the entire estate had absolutely vested in the defendant, and all right of redemption had been lost. It is not enough that there has been a breach of the condition of a mortgage, so that, in one sense, the equitable estate has become a legal one in the mortgagee, to cause a perfect unity of title in the defendant. This distinction between the character of an estate held in mortgage, after breach, but before foreclosure perfected, and that which arises after all rights of redemption are lost, is one well understood, and has a direct bearing upon the question of merger in the present case. To effect a merger by unity of title, the newly acquired estate must be a permanent estate, not one defeasible. But this mortgage estate was defeasible, and so no merger resulted from having the two estates. Ritger v. Parker, 8 Cush. 145. The further inquiry is, whether the condition in Carlton's deed to Clark, being merely to secure the payment of money, the forfeiture is one relievable by the payment of principal and interest due thereon. Many English authorities upon this point were cited by the counsel for the plaintiff, tending to establish this doctrine; though it is obvious that the cases more usually have been those of forfeitures of leasehold interests for the nonpayment of rents. The plaintiff also relies upon our own case of Atkins v. Chilson, 11 Met. 112, which was an action at law to enforce the restoration of the possession of certain premises, alleged to be forfeited by nonpayment of rent on the day stipulated; and in which the court ordered all further proceedings to be stayed upon payment of the rent due and interest thereon. The case. of Sanborn v. Woodman, 5 Cush. 36, is more directly to the point that, where the forfeiture is designed to secure the pay ment of money merely, relief may be given against the forfeiture; and that such relief is not confined to forfeitures occasioned by nonpayment of rent, but is equally applicable to a forfeiture in the case of a deed upon condition subseruent, where the con Hancock, Administrator, v. Carlton. dition is to secure the payment of money merely. The proceed. ings in that case were however at law in a writ of entry; and the mode of giving relief was by ordering a stay of proceedings, upon payment of all sums due, as well interest as principal. In the present case, the question arises upon a bill in equity to redeem a mortgage; and the forfeiture of the estate by failure. to perform the condition in a prior deed is set up as a defence to the bill; and if it exists, and the party cannot be relieved from it, it is fatal to the bill. In such a case, it seems to us that this court should at least adopt as liberal principles in granting relief, as if the proceedings were in the form of an action at law. How far, and under what circumstances, courts of equity will give relief in cases of forfeiture by reason of nonperformance of a condition subsequent, seems to be a vexed question in the English courts. Certainly the broad ground of giving relief in all cases where a forfeiture has been occasioned by the nonpayment of money at the stipulated time, upon an offer to pay the same and the accruing interest, has not been fully sanctioned. While it is stated in 2 Story on Eq. § 1321, "that when the forfeiture is merely a security for the nonpayment of money (as a right of reëntry for nonpayment of rent), then it is to be treated as a mere security, and in the nature of a penalty, and accordingly relievable," it is also stated, in § 1323, as the present general doctrine of the English courts of equity, "that in all cases of forfeiture for the breach of any covenant, other than a covenant to pay rent, no relief will be granted in equity unless upon the ground of accident, mistake, fraud or surprise, where the breach is capable of compensation." For the authorities upon this point see the note to § 1323. Under what precise limitations this power of relieving against forfeitures will be exercised by this court in cases within their Jurisdiction, it is unnecessary, in the present position of the case before us, to decide. In Atkins v. Chilson, the relief was granted upon showing the failure to pay arose from mere accident, the party having tendered the amount two days too early. 11 Met. 112. In Sanborn v. Woodman, Mr. Justice Wilde, in giving the Hancock, Administrator, v. Carlton. opinion of the court, granting the relief, says, "There is no reason to believe that the defendants knowingly and wilfully neglected to pay the interest." 5 Cush. 42. Whether the present case will fall within those principles under which relief is granted in cases of forfeiture, will be a question for future consideration. In the argument on the part of the defendant, reference is had to certain evidence relied on to show laches and wilful neglect on the part of Clark, and those claiming under him, to perform the condition of the deed to him; but we think that is not properly before us upon the question of the sufficiency of the plea. The question as to the facts will arise at a subsequent stage of the proceedings. In the view we have taken of this case, the deed given by the defendant to Clark was a deed upon condition subsequent, and if a breach of the condition has occurred, and an entry under it, the estate will revest in the defendant, and of consequence defeat the right of the plaintiff to maintain this bill, unless relievable in equity from the consequences of the forfeiture upon such evidence as shall authorize and require this court thus to interfere But upon this point, we think, the case is not sufficiently before us. The plea, to operate as a bar to maintaining the present bill, should state more directly and fully the existence of laches on the part of the plaintiff and his intestate, as a ground for refusing relief from the alleged forfeiture. This matter is essential to the issue, and is to be adjudged upon all the facts and circumstances of the case. The proper course will be therefore to rule that the defendant have the benefit of his plea at the hearing; and the entry will be "plea to stand over till the hearing, saving to the defendant the benefit thereof." It may be proper to remark that this case raises no question of the general jurisdiction of this court as a court of equity to relieve from forfeitures at law, on a bill filed merely for that purpose, or under that specific head of equity; as this bill seeks to redeem an actual outstanding mortgage, and the question of relief from a forfeiture alleged to have arisen from a prior deed arises only collaterally, and as an incidental inquiry. The de Hancock, Administrator, v. Carlton. fendant denies the right of the plaintiff to redeem at all, and the question is whether the plaintiff can now be relieved from the legal effect of a breach of the condition of that deed, and an entry under it, which are thus set up as a bar to his maintaining this bill. This question, thus incidentally arising, is therefore properly before the court, as was settled in the case of Holland v. Cruft, 20 Pick. 327. [See also St. 1856, c. 38.] Plea to stand over till the hearing, saving to the defendant the benefit thereof. At November term 1855, the defendant suggested that the effect of this order was only to allow the plaintiff to avoid the plea by evidence of accident, mistake or surprise, and that the order of March 1854 excluded the plaintiff from taking any further evidence; and therefore moved that the bill be dismissed. Choate & G. S. Hale, for the defendant. Sewall, for the plaintiff. SHAW, C. J. As this plea covers the whole bill, the effect of the order, that the plea stand over till the hearing, saving to the defendant the benefit thereof, is, that the defendant shall not be deprived of the benefit of his plea; but that the plaintiff shall be at liberty to file a replication, and proceed to the proof of the facts in reply to the plea; and on such hearing, the plea is to be taken, prima facie, a good bar to the suit; but as there may possibly be circumstances which, in equity, ought to preclude the defendant from relying upon such plea, the question is left open until such hearing. Astley v. Fountaine, Cas. temp. Finch, 4. Cooth v. Jackson, 6 Ves. 18. Heartt v. Corning, 3 Paige, 572, 573. 2 Dan. Ch. Pract. 799, 800. Welf. Eq. Pl. 308. Story Eq. Pl. 698. 2 Barb. Ch. Pract. 121. There is nothing in the order of March term 1854, which affects the plaintiff's rights in this respect. Motion overruled. The plaintiff then filed a general replication; and the case came on for a hearing before the chief justice, who made the following report thereof: 66 Hancock, Administrator, v. Carlton. Having given notice to the parties, I proceeded to take the proofs, consisting of deeds, documents and the testimony of witnesses. "The effect and operation of the plea was, by showing the nature and character of the plaintiff's title, to show that his only title was a mortgage from Clark; that Clark held under a deed from Carlton to him, on this condition: 'Subject nevertheless to my several deeds of mortgage,' (enumerating them, amongst which was one to Nathaniel Francis,) all which said principal sums, with the interest due and to grow due thereon, are to be assumed and paid by said grantee, his heirs and assigns, the same making part of the consideration above expressed; and this deed is on the condition that I, my heirs, executors and administrators, shall be forever indemnified and saved harmless from payment of said principal sums and interest, or any part thereof.' "At the same time, Clark gave back a mortgage to Carlton, to secure the payment of $31,800, another part of the said purchase money. "I consider that these two deeds were separate securities from Clark to Carlton, for different portions of the purchase money to be ultimately paid for the estate, upon which distinct remedies might be had by Carlton. Clark's deed from Carlton was upon a condition subsequent, that Clark, the grantee, his heirs and assigns, should pay off and discharge sundry mortgages, then resting on the estate, amounting to between twenty five and twenty six thousand dollars, as they should become due, and indemnify the grantor from the payment of such mortgage debts and interest, all or the most of which, the grantor, as the maker of such mortgages, and of the personal securities given with them, would still be liable to pay, notwithstanding his alienation of the land to Clark. "The mortgage back was the mortgage of such conditional estate, to secure the payment of another and distinct sum. "Such being the title which John Hancock, Jr. the plaintiff's intestate, took of Clark, the effect of the plea was to show that Clark, and through him Hancock, acquired a conditional title, |