Amicus Curiae Brief — Geraldine Tyler, Petitioner v. Hennepin County, Minnesota, et al.

No. 22-166

IN THE

Supreme Court of the United States

GERALDINE TYLER, on behalf of herself and all others

similarly situated,

Petitioner,

v.

HENNEPIN COUNTY, and

DANIEL P. ROGAN, Auditor-Treasurer,

in his official capacity,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

March 6, 2023

BATEMAN & SLADE, INC.

John Pagliaro, Staff Attorney

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

333 Washington Street, Ste. 850

Boston, Massachusetts 02108

Telephone: (617) 695-3660

JPagliaro@newenglandlegal.org

STONEHAM, MASSACHUSETTS

QUESTION PRESENTED

Does government violate the Takings Clause

when it seizes and retains property value worth

more than the delinquent tax debt it seeks to collect?

i

TABLE OF CONTENTS

Question Presented ...................................................... i

Table of Authorities ................................................... iii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 2

Argument What We Now Call Home Equity Was

Recognized As Property In English

Law At The Time The Constitution

Was Written.............................................. 3

I.

In Fairness and Justice, the Courts

of Equity Sought to Protect

Vulnerable Debtors from Forfeits

and Penalties ..................................... 4

II. The Courts of Equity Expanded the

Debtor Mortgagor’s Rights While

Limiting the Rights of the Creditor

Mortgagee in the Landed Security.... 8

III. The Courts of Equity Recognized

the Debtor’s Equity of Redemption

As Property ...................................... 13

Conclusion ................................................................. 17

ii

TABLE OF AUTHORITIES

Cases

Casburne v. Scarfe, 37 Eng. Rep. 600 (1738) ..... 13-14

Chester v. Chester, 24 Eng. Rep. 967 (1730).............11

Cholmondeley v. Clinton,

37 Eng. Rep. 527 (1821) .................................12

Conard v. Atlantic Ins. Co. of N.Y.,

26 U.S. 386 (1828) ..........................................12

Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022) ............3

Howard v. Harris, 23 Eng. Rep. 288 (1726) .............10

The King v. The Inhabitants of St. Michael’s

in Bath, 99 Eng. Rep. 399 (1781) ...................10

Pawlett v. Attorney General,

145 Eng. Rep. 550 (1668) .................................9

Quarrell v. Beckford, 56 Eng. Rep. 100 (1816).........11

Richards v. Syms, 27 Eng. Rep. 567 (1740) .............11

Sparrow v. Hardcastle, 27 Eng. Rep. 148 (1754) .....10

Thornbrough v. Baker, 22 Eng. Rep. 802 (1676) .. 9-10

United States v. Taylor, 104 U.S. 216 (1881) ...........12

Legal Treatises, Dictionaries and Restatement

Ballow, Henry, A Treatise of Equity

(London 1737) .................................................11

iii

2 Blackstone, William, Commentaries .......................7

Carter, Samuel, Lex Vadiorum: The Law of

Mortgages ([London] 2d ed. 1728) ..................14

Coote, Richard Holmes, A Treatise on the Law of

Mortgage (London 4th ed. 1821) ............ passim

1 Fonblanque, John, A Treatise of Equity

(London 1793) ...................................................5

2 Fonblanque, John, A Treatise of Equity

(London 4th ed. 1812)...........................8, 11, 15

2 Jacob, Giles The Law-Dictionary (London 1797) ..15

Jeremy, George, A Treatise on the Equity

Jurisdiction (London 1828) ............................11

1 Pomeroy, John Norton, A Treatise on Equity

Jurisprudence (3rd ed. 1905) ................. passim

3 Pomeroy, John Norton, A Treatise on Equity

Jurisprudence (3rd ed. 1905) .......................5, 8

Powell, John Joseph, A Treatise upon the Law of

Mortgages (London 1785) ........... 7, 8, 10, 11, 13

Restatement (Third) of Property (Mortgages)

(Am. Law Inst. 1997) ................................15, 16

2 Story, Joseph, Commentaries on Equity

Jurisprudence (Boston 1836) ......... 6, 10, 15, 16

Williams, Thomas Walter, A Compendious and

Comprehensive Law Dictionary

(London 1816) ...................................................7

iv

Legal Histories and Articles

Baker, J. H., An Introduction to English Legal

History (3rd ed. 1990) ...............................4, 6, 7

Burkhart, Ann M., Lenders and Land,

64 Mo. L. Rev., Spring 1999, at 249.................7

5 Holdsworth, W.S., A History of English Law

(3rd ed. 1945) .................................. 4, 5, 7, 9, 12

6 Holdsworth, W.S., A History of English Law

(1924) ....................................................9, 13, 15

Holdsworth, W.S., An Historical Introduction

to the Land Law (1927) ..............................6, 14

Maitland, F.W., Equity (1910) ....................................5

Simpson, A. W. B., A History of the Land Law

(2d ed. 1986)..................................................6, 8

Turner, R. W., The Equity of Redemption

(1931) ...................................................... passim

Waddilove, David, The “Mendacious” Common-Law

Mortgage, 107 Ky. L.J. 425 (2018-2019) ..........8

Waddilove, David, Why the Equity of Redemption?,

Available at https://ssrn.com/abstract=

3185429 (last accessed Feb. 1, 2023) ..............7

Waddilove, David, Emmanuel College v. Evans

(1626) and the History of Mortgages,

73 The Cambridge Law Journal,

March 2014, at 142 .........................................13

v

Watt, Gary, The Lie of the Land: Mortgage Law as

Legal Fiction, in 4 Modern Studies in Property

Law 73 (Elizabeth Cooke ed., 2007) ................6

Wyman, Bruce, The Clog on the Equity of

Redemption, 21 Harv. L.R. 459 (1908) ............9

vi

INTEREST OF AMICUS CURIAE1

The New England Legal Foundation (NELF) is a

nonprofit, nonpartisan, public-interest law firm

incorporated in Massachusetts in 1977 and

headquartered in Boston. Its membership consists

of business corporations, foundations, law firms, and

individuals who believe in NELF’s mission of

promoting balanced economic growth in New

England and the nation, protecting the freeenterprise system, and defending individual

economic rights and the rights of private property.

In fulfillment of its mission and as relevant here,

over the years NELF has filed numerous amicus

briefs in this Court and other courts on private

property

issues,

especially

those

having

constitutional dimensions.

NELF appears as an amicus in this case because

it believes that the Petition raises serious

constitutional questions about the manner in which

delinquent taxes are collected in some states. As the

Petition in this case, as well as those in 22-160 and

22-237, illustrates, certain traditional property

rights having deep historical roots in our English

heritage are being slighted or read out of existence

by lower courts in tax collection cases. In order to

demonstrate the historical existence of these rights,

in its brief NELF calls to the Court’s attention

numerous historical authorities that affirm their

existence, so that this Court may ensure that when

government exerts its sovereign power to secure

payment of delinquent taxes, it does so in a fair and

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

party or counsel for a party authored this brief in whole or in

part and no person or entity other than NELF made any

monetary contribution to its preparation or submission.

1

just manner that respects the taxpayer’s property

right in his home equity.

NELF has therefore filed this brief to assist the

Court in deciding the merits of the Petition.

SUMMARY OF THE ARGUMENT

Home equity came to be recognized as a form of

property in real estate by the early 18th century. It

developed as English courts of equity sought to

mitigate the harshness of the common law, under

which fee title was conveyed to a mortgagee as

security for a debtor mortgagor’s repayment of a

loan. Under the common law a mortgagor was

frequently at grave risk of forfeiting his land

completely for the slighted default, even when the

land forfeited far exceeded in value the amount of

the debt.

Equity sought to avoid forfeitures

generally and especially penal ones of the latter

kind. The courts therefore enlarged greatly the time

and circumstances within which the debtor

mortgagor had a right to satisfy the debt without

forfeit or penalty. This right was called the equity of

redemption.

As courts of equity increasingly emphasized the

debtor/creditor nature of the relationship over the

grantor/grantee aspect of it, they protectively

enlarged the debtor mortgagor’s rights and curbed

the creditor mortgagee’s. For example, they declared

the creditor mortgagee to be in effect a trustee to the

debtor for any value in the property over and above

the amount of the debt actually owed to the

mortgagee. Eventually, in 1738 Lord Harwicke

formally declared what had already been recognized

in Chancery cases for some years prior: “An equity of

redemption is considered as an estate in the land[.]”

2

This proprietary sense of “equity of redemption” is

what we know as home equity, or simply the equity.

ARGUMENT

WHAT WE NOW CALL HOME EQUITY WAS

RECOGNIZED AS PROPERTY IN ENGLISH

LAW AT THE TIME THE CONSTITUTION WAS

WRITTEN.

The Petitioner contends that home equity is

property and that taxpayers have a Fifth

Amendment right to just compensation when

government confiscates property valued at more

than the taxes that are the sole basis of the

government’s claim, i.e., when government takes

home equity. The Petitioner is correct that home

equity is property, and in this brief Amicus explains

why.

Long before the Constitution was written, a body

of law was developed by the English courts of equity

to deal with the use of land as an asset to secure

payment of a monetary debt. Recognition of a

debtor’s equity as an estate of property developed in

this body of law, which was the law of mortgages.

Mortgage law was an ideal place to establish this

ownership right because mortgages lie at the

intersection of the law of real property and

creditor/debtor law. See Hall v. Meisner, 51 F.4th

185, 190 (6th Cir. 2022) (“In Anglo-American legal

history, the rules governing equitable interests in

real property arose primarily in the context of what

we now call mortgages.”).

In shaping the law, the equity courts were

concerned to protect financially vulnerable property

owners, for at common law the slightest default

resulted in a complete forfeiture of the property. As

3

if that were not a grievous enough loss, a forfeiture

could assume a genuinely penal character when the

debtor’s land was worth more than the loan it

secured. The equity courts, with their abhorrence of

forfeitures and penalties, were ideally suited to

mitigate the harshness of the common law.

As Amicus explains, it was out of these concerns

for fairness and justice that the property right in

home equity developed.

I.

In Fairness and Justice, the

Courts of Equity Sought to

Protect Vulnerable Debtors from

Forfeits and Penalties.

Recognition of a debtor’s equity as an estate of

property developed in the law of mortgages.

Historically, at common law a mortgage of land

given as security for the payment of a debt conveyed

actual fee simple title to the creditor mortgagee. 5

W.S. Holdsworth, A History of English Law 330 (3rd

ed. 1945); 1 John Norton Pomeroy, Treatise on

Equity Jurisprudence 185 (3rd ed. 1905); R. W.

Turner, The Equity of Redemption 18 (1931); J. H.

Baker, An Introduction to English Legal History 353

(3rd ed. 1990).

The title, however, remained

defeasible on condition subsequent, i.e., that the

debtor mortgagor pay the debt in full on a stipulated

day. 1 Pomeroy, supra, at 185; Turner, supra, at 18;

Baker, supra, at 353. If the mortgagee defaulted in

the least regard, the conveyance became absolute

and the mortgagor lost everything. 1 Pomeroy,

supra, at 185; Turner, supra, at 20; Baker, supra, at

355. For example, “[t]he date had to be adhered to

strictly; if the money was not tendered in time to be

counted out before sunset of the appointed day, the

land was lost.” Baker, supra, at 355.

4

Hence, the common law regulated the conditions

of repayment with a strictness and harshness that

opened the way to many injustices. 5 Holdsworth,

supra, at 293, 330-31. See Richard Holmes Coote, A

Treatise on the Law of Mortgage 17 (London 1821)

(mortgages at common law attended with “ruinous

consequences to the unfortunate debtor”).

“[I]t is difficult to conceive on what ground the

Courts of Common Law could have given relief, even

had they been so inclined.” Turner, supra, at 21. To

mitigate the “harsh” consequences that the common

law produced, equity courts became involved in

mortgage cases “and by degrees built up a distinct

theory of mortgages which is one of the most

magnificent triumphs of equity jurisprudence.”

3 John Norton Pomeroy, A Treatise on Equity

Jurisprudence 2337 (3rd ed. 1905). See also Turner,

supra, at 26-42. Increasingly, courts of equity would

come to view such cases as primarily debtor-creditor

cases, rather than strictly property cases. In other

words, “[t]he mortgage, viewed as a forfeited

condition, arose out of the law of property; but,

viewed as a debt with security attached, would be

relievable [by equity] as an agreement for a sum of

money.” Id. at 40. See also 3 Pomeroy, supra, at

2337; 1 John Fonblanque, A Treatise of Equity 38788 (London 1793) (“in all cases of penalty or

forfeiture . . . equity will relieve . . . where they can

make compensation” and “where the condition is for

the payment of money at a certain time,” such that

“no harm is done”).

There were several reasons for Chancery’s

extensive involvement in such cases. See F.W.

Maitland, Equity 266 (1910) (“[Equity] drew almost

every dispute about mortgages into the sphere of its

jurisdiction and had the last word to say about

5

them.”). First, “[m]ortgagors in early days were, and

at the present day often are, needy persons.” W.S.

Holdsworth, An Historical Introduction to the Land

Law 257 (1927). See also Gary Watt, The Lie of the

Land: Mortgage Law as Legal Fiction, in Elizabeth

Cooke, (ed.), 4 Modern Studies in Property Law 73,

81 (Elizabeth Cooke ed., 2007) (“doubtless there was

a real concern to prevent a mortgagee from taking

unconscionable

advantage

of

a

debtor’s

vulnerability”). Compare on this docket Brief for

Petitioner at 38, 44-45; at cert. stage, Brief of Amici

Curiae AARP and AARP Foundation at 11-19.

Second, and more specifically, “[t]he protection

accorded to mortgagors was viewed as one aspect of

a general policy of providing relief against penalties

and forfeitures, and protecting persons from

unconscionable enforcement of legal rights,” A.W.B.

Simpson, A History of the Land Law 244 (2d ed.

1986), for “[i]t is a universal rule, in Equity never to

enforce either a penalty or a forfeiture,” 2 Joseph

Story, Commentaries on Equity Jurisprudence 551

(Boston 1836). See also Baker, supra, at 355 (“The

equitable doctrine of mortgages grew from the same

root as the doctrine of penalties.”); Watt, supra, at

81; 1 Pomeroy, supra, at 185-6 (chancery court’s

relief founded on “the principle that equity can and

will relieve against legal penalties and forfeitures”

by award of money when possible).

“The absolute forfeiture of the estate, whatever

might be its value, on breach of the condition was, in

the eye of equity a flagrant injustice and hardship,

although perfectly accordant with the [common law]

system on which the mortgage itself was grounded.”

Coote, supra, at 19. The penal nature of a forfeiture

was felt especially sharply when the value of the

property conveyed to the creditor exceeded the

6

amount of the debt, for “[i]t was obviously against

conscience that a person should recover a sum of

money wholly in excess of any loss incurred.” 5

Holdsworth, supra, at 293.

See also David

Waddilove, Why the Equity of Redemption? at 11

(“The Chancery record bears out the logic that

mortgaged properties were often more valuable than

the debts that they secured.”).2

Hence, “[b]y the end of the fifteenth century . . .

Chancery had adopted the view that to recover more

than a creditor had actually lost was unconscionable.

If a creditor tried to extract more than the principal

debt or actual damages, with reasonable costs, relief

was available.” Baker, supra, at 370. See also Ann

M. Burkhart, Lenders and Land, 64 Mo. L. Rev.,

Spring 1999, at 249, 264 (“Such a forfeiture smacked

of penalty.”); Waddilove, supra, at 11 (“Forfeiture of

excess value was tantamount to a contract penalty,

something that equity disfavoured anyway.”)

Even Blackstone acknowledged the “reasonable

advantage” given to the debtor mortgagor by equity

when otherwise “in strictness of law, an estate worth

1000l. might be forfeited for non-payment of 100l. or

a less sum.” 2 William Blackstone, Commentaries

*159. See John Joseph Powell, A Treatise upon the

Law of Mortgages 10 (London 1785) (“an estate of

great value might be forfeited for a trifling

consideration”); Thomas Walter Williams, “Equity of

Redemption,” A Compendious and Comprehensive

Law Dictionary (London 1816) (same example as

Blackstone’s).

2 Available at https://ssrn.com/abstract= 3185429 (last accessed

Feb. 1, 2023).

7

The chancery courts therefore began to shield the

mortgagor against forfeiture by permitting him to

redeem his property by late payment of principal,

interest, and costs. This form of relief was known as

the equity of redemption, and it was perhaps firmly

“established early in the reign of Charles I as a

definite right or power” possessed by the mortgagor.

Turner, supra, at 48. See Simpson, supra, at 245;

David Waddilove, The “Mendacious” Common-Law

Mortgage, 107 KY. L.J. 425, 457 (2018-2019); 1

Pomeroy, supra, at 186.

II.

The Courts of Equity Expanded

the Debtor Mortgagor’s Rights

While Limiting the Rights of the

Creditor Mortgagee in the Landed

Security.

Courts of equity came to look upon the

relationship between the mortgagor and mortgagee

as the parties did, i.e., solely as a debtor/creditor

relationship, not a grantor/grantee one, despite the

conveyance of the fee to the creditor, and the courts

increasingly drew the conclusions that follow from

that premise. See 3 Pomeroy, supra, at 2337 (“equity

looks at the intent, rather than the form”). See also

Coote, supra, at 24 (“equity will admit even parol

evidence to shew the conveyance was intended by

way of security only”).

The equity courts therefore treated the

mortgagee as, in equity, holding his fee merely as

security for a loan, while the mortgagor was

regarded as, in equity, the real owner. Powell,

supra, at 11-12, 156; 2 John Fonblanque, A Treatise

of Equity 279-280 (London 4th ed. 1812) (“in natural

justice and equity, the principal right of the

mortgagee is to the mortgage-money, and his right to

8

the land is only as a collateral security for the

payment of it”); 5 Holdsworth, supra, at 331; 6 W.S.

Holdsworth, A History of English Law 663 (1924).

So protective was Chancery that a mortgagor’s

covenant not to redeem was deemed unenforceable.

See Bruce Wyman, The Clog on the Equity of

Redemption, 21 Harv. L.R. 459, 460 (1908). Later

developments would determine more precisely the

nature of this right or power possessed by the debtor.

In 1668 Chief Baron Hale declared, “I conceive,

that a mortgage is . . . a title in equity . . . . [A] power

of redemption is an equitable right inherent in the

land,” and not a contractual right; the mortgagee, he

said, held only a “chattel” interest in the land, not a

proprietary one. Pawlett v. Attorney General, 145

Eng. Rep. 550, 551 (1668). See Turner, supra, at 5155. Hale’s view appears to have been that the equity

of redemption was a right of the mortgagor to

redeem an estate and that this right inhered in the

mortgagor’s title to the land as its owner in equity,

despite the fee conveyance used to create the

security interest for the mortgagee.

In 1676 Lord Nottingham reinforced the point,

ruling that, “in natural Justice and Equity, the

principal Right of the Mortgagee is to the Money,

and his Right of the Land is only as a Security for

the Money . . . [for] the Land was never more than a

Security.” Thornbrough v. Baker, 22 Eng. Rep. 802,

803 (1676).

His Lordship declared that he had

considered the various Precedents in this

Case which had been urged, whereof not one

did come to the very Point, there being a

great Difference between a Mortgage and an

absolute Conveyance, with a collateral

9

Agreement to reconvey upon Repayment of

the Purchase Money[.]

Id. at 804. Again, the mortgagee held only a chattel

interest in the land. Id. (“Part of the personal

Estate,” not part of the devise of land). See Turner,

supra, at 38-40, 157. See also Howard v. Harris, 23

Eng. Rep. 288 (1726) (“once a Mortgage always a

Mortgage”); Powell, supra, at 14 (“Every contract for

the loan of money, secured by the conveyance of a

real estate to the lender, and not made in

contemplation of an eventual arrangement of

property, is in equity, deemed a mortgage[.]”).

“From Nottingham’s time onwards, the theory

that in equity a mortgage was to be regarded

primarily as a security was constantly employed as a

leading principle upon which the decision of new or

doubtful questions might be based[.]” Turner, supra,

62. See 2 Story, supra, at 284 (“In regard to the

estate of the mortgagee; it being treated in Equity,

as a mere security for the debt, it follows the nature

of the debt.”). See also Sparrow v. Hardcastle, 27

Eng. Rep. 148, 149 (1754) (“merely a security . . .

chattel interest only”); The King v. The Inhabitants

of St. Michael’s in Bath, 99 Eng. Rep. 399, 400 (1781)

(same).

True to his notion that the mortgagee’s interest

in the land extended no further than as security for

the debt, Nottingham added that “after Payment of

the Money, the Law keeps a Trust for the Mortgage.”

Thornbrough, 22 Eng. Rep. at 803. In other words,

once the mortgagee creditor’s monetary claim is

satisfied, the security interest in the land dissolves

and any remaining interests in the res belong to the

mortgagor debtor and must be preserved and

10

restored to the latter if those interests are in the

custody of the mortgagee.

Consistent with that view, in 1730 Lord

Chancellor King ruled, “Now an estate, though

mortgaged, continues still to be the estate of the

mortgagor, subject to the payment of the pledge

which is upon it; and the mortgagee’s right is only to

the money due upon the land, not to the land

itself[.]” Chester v. Chester, 24 Eng. Rep. 967. 969

(1730).

See 1 Pomeroy, supra, at 168 (“the

ownership of the equitable estate is regarded by

equity as the real ownership, and the legal estate is,

as has been said, no more than the shadow”).

By 1737 we find the following written in a

treatise on equity:

[W]ith Respect to the Surplus of the Estate

over and above the Mortgage-Money, the

Mortgagee is usually look’d upon in Equity,

as a Trustee for the Mortgagor[.]

Henry Ballow, A Treatise of Equity 86 (London

1737). See Richards v. Syms, 27 Eng. Rep. 567, 568

(1740) (“Equity . . . in all Cases says, That where the

Debt appears to be satisfied, there arises a Trust by

Operation of Law for the Benefit of the Mortgagor.”);

Powell, supra, at 12, 49; 2 Fonblanque, supra, at

256; George Jeremy, A Treatise on the Equity

Jurisdiction 181 (London 1828) (mortgagee “has

been said to bear resemblance in regard to the

surplus-rents, after payment of the interest due to

him, to a trustee for the mortgagor, and after

liquidation of the whole debt and interest, he not

having any longer a right to the possession, to a

mere naked trustee”); Quarrell v. Beckford, 56 Eng.

Rep. 100, 104 (1816) (where creditor mortgagee

“pay[s] himself first,” he must “afterwards . . . .

11

account to the mortgagor”); Cholmondeley v. Clinton,

37 Eng. Rep. 527, 594 (1821) (creditor mortgagee

“has no right . . . further than and as may be

necessary to secure the repayment of the money due

to him. . . . [W]hen paid off, . . . the implied trust, to

surrender the estate to the person entitled to

demand it, begins.”); 5 Holdsworth, supra, at 331

(must account for any profits received “in excess of

sum due”). See also Conard v. Atlantic Ins. Co. of

N.Y., 26 U.S. 386, 441 (1828) (in equity, “[w]hen the

debt is discharged, there is a resulting trust for the

mortgagor”); United States v. Taylor, 104 U.S. 216,

222 (1881).

Of the role of the mortgagee as trustee, Turner

observes in his book on the equity of redemption:

This is as far as the conception of the

mortgagee as a trustee can strictly be

carried; that, when the money is paid, he is a

trustee of the legal estate for the mortgagor,

who is then complete owner of the beneficial

interest; for in equity he had the legal estate

but as security for the debt, and, now that

the debt has ceased to exist, the reason for

his retention of the legal estate is at an end.

Supra, at 167; for the analogy of trusts and

mortgages, see id. at 48, 51, 53, 55, 65, 106, 156ff.

Equity was absolutely clear, then, that the

secured creditor had a claim to land limited to the

money value of the debt; over and above that, any

value inhering in the land belonged rightfully to the

debtor. So imperious was the equitable principle

that a creditor may take only what he is owed that

“though there be a private agreement, between the

mortgagee and the mortgagor, for an allowance for

the mortgagee’s trouble, in receiving the rents and

12

profits of the estate, yet the court will not carry it

into execution; for, equity will not allow him any

more than his principal and interest.” Powell, supra,

at 423-24. See also Coote, supra, at 26-27.

III.

The Courts of Equity Recognized

the

Debtor’s

Equity

of

Redemption As Property.

The culmination of the development of the equity

of redemption came in Lord Hardwicke’s decision in

Casburne v. Scarfe, 37 Eng. Rep. 600 (1738). The

question posed was “what kind of interest an equity

of redemption is in the eye of the Court.” Id. at 600.

With Lord Harwicke’s answer, “equity of

redemption” was recognized explicitly not only as the

right to redeem the land in equity, but also as itself

an estate in the land, i.e., what we now call “home

equity” or simply “the equity.” 6 Holdsworth, supra,

at 663 (continuous enlarging of right to redeem

created “right of property,” wherein mortgagor held

equitable estate in land). See also David Waddilove,

Emmanuel College v. Evans (1626) and the History

of Mortgages, 73 The Cambridge Law Journal,

March 2014, at 142, 143 n.3 (dual meaning of “equity

of redemption” as right to redeem land and as

ownership of estate in land).

The report of the case says:

First, as to the nature of the interest—An

equity of redemption is considered as an

estate in the land; it will descend, may be

granted, devised, entailed, and that

equitable estate may be barred by a common

recovery. This proves that it is not

considered as a mere right, but as such an

estate whereof, in the consideration of this

13

Court, there may be a seisin, for without

such seisin, a devise could not be good.

The person having the equity of

redemption is considered as owner of the

land, and the mortgagee as entitled only to

retain it as a security or a pledge for a debt.

****

It has also been objected that a mortgagee is

not a bare trustee for the mortgagor. It is

true that a mortgagee is not barely a trustee;

but it is sufficient for this purpose that he is

in fact a trustee.

Casburne, 37 Eng. Rep. at 600, 601. See Holdsworth

(1927), supra, at 260 (“because the mortgagor had an

estate or interest in the property, he had something

which he could sell or mortgage; and so it became

possible for the mortgagor to mortgage his property

more than once”).

Actually, courts of equity had long been deciding

cases on these principles. See 1 Pomeroy, supra, at

186 (“Hardwicke laid down the doctrine as already

established”); Turner, supra, at vii n.1. For example,

Samuel Carter had observed that, already by 1728,

“There are several Cases in the Chancery Reports,

which prove, That not only Mortgages but even

Equities of Redemption may be assigned or devised

for the Payment of Debts, &c. . . . . An Equity of

Redemption is now of so great Esteem in Law, that it

is assignable and devisable[.]” Lex Vadiorum: The

Law of Mortgages 195-6, 210 ([London] 2d ed. 1728).

Looking back on this development, the author of

a law dictionary observed in 1797, “As to the estate

of the mortgagor, though formerly doubted whether

he had more than a right of redemption, it is now

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established, that he hath an actual estate in equity,

which may be devised, granted, and entailed[.]” 2

Giles Jacob The Law-Dictionary, “Mortgage” (London

1797); accord 2 Fonblanque, supra, at 257 n.(d). See

also 6 Holdsworth, supra, at 663 (Chancery “ma[d]e

the mortgagor’s equity to redeem a right of

property”); 1 Pomeroy, supra, at 186 (“the very

central notion of the equitable theory, that an equity

of redemption is (in equity) an estate in the land”)

(original emphasis): Restatement (Third) of Property

(Mortgages) §3.1 cmt. a (Am. Law Inst. 1997).

In light of the all the foregoing compelling

equitable principles and in light of the finality and

harshness of common law foreclosure, English courts

of equity would sometimes hesitate to grant a

mortgagee’s bill seeking to foreclose even after the

right to redeem was lost. While, “except in special

cases,” foreclosure was “deemed . . . the exclusive

and appropriate remedy,” there grew up such a list

of reasons to deny foreclosure and to order a sale

instead that Story observed, “It is difficult to

perceive any solid or distinct ground, upon which

these exceptions stand, which would not justify the

Courts of Equity in England in decreeing a sale at all

times, when prayed for by the mortgagee, or

beneficial to the mortgagor.” 2 Story, supra, at 294,

295.

See also Coote, supra, at 511.

Indeed,

sometimes, even after the decree of foreclosure had

been signed and enrolled and the mortgagee put in

possession, a court might afford the debtor

mortgagor relief and open the decree. Id. at 515.

In his work on equity Story observed in 1836:

The natural, and certainly the most

convenient and beneficial course for the

mortgagor, would seem to be . . . primarily

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and ordinarily to direct a sale of the

mortgaged property, giving the debtor any

surplus after discharging the mortgage

debt[.] . . . This course has accordingly been

adopted in many of the American Courts of

Equity[.]3

Supra, at 293-94.

Along much the same lines, in 1821 Coote

had observed that in England, too, it had

become “frequent in practice to give the

mortgagee a power of sale over the estate”

through the mortgage agreement. Supra, at

128. See 2 Story, supra, at 295 (“inconveniences

of the existing practice of foreclosure in that

country are so great, that it has become a

common practice to insert in mortgages a power

of sale upon default of payment”). See also on

this docket Brief of Amici Curiae David C.

Wilkes et al. at 12-13.

Hence, in fairness and justice, a home owner’s

equity in his house and land has long been

recognized as property. As such, it fully warrants

constitutional

protection

against

government

confiscation.

3 “Sometimes, however, the foreclosure will produce an amount

in excess of the mortgage obligation. . . . [W]hen a surplus

occurs, it represents what remains of the equity of redemption

and is, as such, a substitute res. The surplus stands in the

place of the foreclosed real estate[.]” Restatement, §7.4 cmt. a.

The Restatement goes on to say, “If the land sells for more than

the mortgage debt, the surplus will be paid to [the] mortgagor

or others who derive their rights through the mortgagor[.]” Id.

§3.1 cmt. a. See also id., §7.4 Reporter’s Note.

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CONCLUSION

For the reasons set forth above, this Court should

rule that when government takes property for

delinquent taxes, home equity must be treated as

property under the Fifth Amendment.

Respectfully submitted,

NEW ENGLAND LEGAL

FOUNDATION,

By its attorneys,

/s/

John Pagliaro

John Pagliaro, Staff Attorney

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

333 Washington Street, Suite 850

Boston, Massachusetts 02108

Telephone: (617) 695-3660

JPagliaro@newenglandlegal.org

Dated: March 6, 2023

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