Dana

The case was tried by the court, without a jury.

The ground upon which this action, to set aside this mortgage, is founded, is, that under cover of the mortgage, Deitz had made an assignment in fact of all his property, to the defendants, and with the intent to hinder and delay other creditors. As far as'the instrument by which the right of possession of the property is conveyed, shows on it 3 face, it is a mortgage, in the strictest sense and definition of the word, and is not an assignment. It is too well settled to admit of discussion that, in the absence of any statutory prohibition, a party, when in failing circumstances, may either pay any creditor or creditors whom he may elect to prefer, or he may give them such security for the liquidation of their demands, as lies within his power. The fact that the mortgagee, in this instance, is to sell the property which has been placed under his control, to secure him in the payment of his debt, in no way injures or affects the legal force and effect of the mortgage itself. The mortgage leaves the general right of the property in the mortgagor, and merely subjects the property to a lien for the amount which the instrument expresses.…