MORTGAGE, contracts, conveyancing. Mortgages are of several kinds: as
the concern the kind of property, mortgaged, they are mortgages of lands,
tenements, and, hereditaments, or of goods and chattels; as they affect the
title of the thing mortgaged, they are legal and equitable.
2. In equity all kinds of property; real or personal, which are capable of an
absolute sale, may be the subject of a mortgage; rights in remainder and
reversion, franchises, and choses in action, may, therefore, be mortgaged; But a
mere possibility or expectancy, as that of an heir, cannot. 2 Story, Eq. Jur.
1021; 4 Kent, Com. 144; 1 Powell, Mortg. 17, 23; 3 Meri. 667.
3. A legal mortgage of lands may be described to be a conveyance of lands, by
a debtor to his creditor, as a pledge and security for the repayment of a sum of
money borrowed, or performance of a covenant; 1 Watts, R. 140; with a proviso,
that such conveyance shall be void on payment of the money and interest on a
certain day, or the performance of such covenant by the time appointed, by which
the conveyance of the land becomes absolute at law, yet the, mortgagor has an
equity of redemption, that is, a right in equity on the performance of the
agreement within a reasonable time, to call for a re-conveyance of the land.
Cruise, Dig. t. 15, c. 1, s. 11; 1 Pow. on Mortg. 4 a, n.; 2 Chip. 100; 1 Pet.
R. 386; 2 Mason, 531; 13 Wend. 485; 5 Verm. 532; 1 Yeates, 579; 2 Pick. 211.
4. It is an universal rule in equity that once a mortgage, always a mortgage;
2 Cowen, R. 324; 1 Yeates, R. 584; every attempt, therefore, to defeat the
equity of redemption, must fail. See Equity of Redemption.
5. As to the form, such a mortgage must be in writing, when it is intended to
convey the legal title. 1 Penna. R. 240. It is either in one single deed which
contains the whole contract - and which is the usual form - or, it is two
separate instruments, the one containing an absolute conveyance, and the other a
defeasance. 2 Johns. Ch. Rep. 189; 15 Johns. R. 555; 2 Greenl. R. 152; 12 Mass.
456; 7 Pick. 157; 3 Wend, 208; Addis. 357; 6 Watts, 405; 3 Watts, 188; 3 Fairf.
346; 7 Wend. 248. But it may be observed in general, that whatever clauses or
covenants there are in a conveyance, though they seem to import an absolute
disposition or conditional purchase, yet if, upon the whole, it appears to have
been the intention of the parties that such conveyance should be a mortgage
only, or pass an estate redeemable, a court of equity will always so construe
it. Vern. 183, 268, 394; Prec Ch. 95; 1 Wash. R 126; 2 Mass. R. 493; 4 John. R.
186; 2 Cain. Er. 124.
6. As the money borrowed on mortgage is seldom paid on the day appointed,
mortgages have now become entirely subject to the court of chancery, where it is
an established rule that the mortgagee holds the estate merely as a pledge or
security for the repayment of his money; therefore a mortgage is considered in
equity as personal estate.
7. The mortgagor is held to be the real owner of the land, the debt being
considered the principal, and the land the accessory; whenever the debt is
discharged, the interest of the mortgagee in the lands determines of course, and
he is looked on in equity as a trustee for the mortgagor.
8. An equitable mortgage of lands is one where the mortgagor does not convey
regularly the land, but does some act by which he manifests his determination to
bind the same for the security of a debt he owes. An agreement in writing to
transfer an estate as a security for the repayment of a sum of money borrowed,
or even a deposit of title deeds, and a verbal agreement, will have the same
effect of creating an equitable mortgage. 1 Rawle, Rep. 328; 5 Wheat. R. 284; 1
Cox's Rep. 211. But in Pennsylvania there is no such a thing as an equitable
mortgage. 3 P. S. R. 233. Such an agreement will be carried into execution in
equity against the mortgagor, or any one claiming under him with notice, either
actual or constructive, of such deposit having been made. 1 Bro. C. C. 269; 2
Dick. 759; 2 Anstr. 427; 2 East, R. 486; 9 Ves. jr. 115; 11 Ves. jr. 398, 403;
12 Ves. jr. 6, 192; 1 John. Cas. 116; 2 John. Ch. R. 608; 2 Story, Eq. Jur.
1020. Miller, Eq. Mortg. passim.
9. A mortgage of goods is distinguishable from a mere pawn. 5 Verm. 532; 9
Wend. 80; 8 John. 96. By a grant or conveyance of goods in gage or mortgage, the
whole legal title passes conditionally to the mortgagee, and if not redeemed at
the time stipulated, the title becomes absolute at law, though equity will
interfere to compel a redemption. But, in a pledge, a special property only
passes to the pledgee, the general property remaining in the pledger. There have
been some cases of mortgages of chattels, which have been held valid without any
actual possession in the mortgagee; but they stand upon very peculiar grounds
and may be deemed exceptions to the general rule. 2 Pick. R. 607; 5 Pick. R. 59;
5 Johns. R. 261; Sed vide 12 Mass. R. 300; 4 Mass. R. 352; 6 Mass. R. 422; 15
Mass. R. 477; 5 S. & R. 275; 12 Wend. 277: 15 Wend. 212, 244; 1 Penn. 57.
Vide, generally,, Powell on Mortgages; Cruise, Dig. tit. 15; Viner, Ab. h. t.;
Bac. Ab. h. t., Com. Dig. h. t.; American Digests, generally, h. t.; New, York
Rev. Stat. p. 2, c. 3; 9 Wend. 80; 9 Greenl. 79; 12 Wend. 61; 2 Wend. 296; 3
Cowen, 166; 9 Wend. 345; 12 Wend. 297; 5 Greenl. 96; 14 Pick. 497; 3 Wend. 348;
2 Hall, 63; 2 Leigh, 401; 15 Wend. 244; Bouv. Inst. Index, h. t.
10. It is proper to, observe that a conditional sale with the right to
repurchase very nearly resembles a mortgage; but they are distinguishable. It is
said that if the debt remains, the transaction is a mortgage, but if the debt is
extinguished by mutual agreement, or the money advanced is not loaned, but the
grantor has a right to refund it in a given time, and have a reconveyance, this
is a conditional sale. 2 Edw. R. 138; 2 Call, R. 354; 5 Gill & John. 82; 2
Yerg. R. 6; 6 Yerg. R. 96; 2 Sumner, R. 487; 1 Paige, R. 56; 2 Ball & Beat.
274. In cases of doubt, however, courts of equity will always lean in favor of a
mortgage. 7 Cranch, R. 237; 2 Desaus. 564.
11. According to the laws of Louisiana a mortgage is a right granted to the
creditor over the property of his debtor, for the security of his debt, and
gives him the power of having the property seized and sold in default of
payment. Civ. Code of Lo. art. 3245.
12. Mortgage is conventional, legal or judicial. 1st. The conventional
mortgage is a contract by which a person binds the whole of his property, or a
portion of it only, in favor of another, to secure the execution of some
engagement, but without divesting himself of the possession. Civ. Code, art.
13. - 2d. Legal mortgage is that which is created by operation of law: this
is also called tacit mortgage, because it is established by the law, without the
aid of any agreement. Art. 3279. A few examples will show the nature of this
mortgage. Minors, persons interdicted, and absentees, "have a legal mortgage on
the property of their tutors and curators, as a security for their
administration; and the latter have a mortgage on the property of the former for
advances which they have made. The property of persons who, without being
lawfully appointed curators or tutors of minors, &c., interfere with their
property, is bound by a legal mortgage from the day on which the first act of
interference was done.
14. - 3d. The judicial mortgage is that resulting from judgments, whether
these be rendered on contested cases or by default, whether they be final or
provisional, in favor of the person obtaining them. Art. 3289.
15. Mortgage, with respect to the manner in which it binds the property, is
divided into general mortgage, or special mortgage. General mortage is that
which binds all the property, present or future, of the debtor. Special mortgage
is that which binds only certain specified property. Art. 3255.
16. The following objects are alone susceptible of mortgage: 1. Immovables,
subject to alienation, and their accessories considered likewise as immovable.
2. The usufruct of the same description of property with its accessories during
the time of its duration. 3. Slave's. 4. Ships and other vessels. Art. 3256.
MORTGAGEE, estates, contracts. He to whom a mortgage is made.
2. He is entitled to the payment of the money secured to him by the mortgage;
he has the legal estate in the land mortgaged, and may recover it in ejectment,
on the other hand he cannot commit waste; 4 Watts, R. 460; he cannot make leases
to the injury of the mortgagor; and he must account for the profits he receives
out of the thing mortgaged when in possession. Cruise, Dig. tit. 15, c. 2.
MORTGAGOR, estate's, contracts. He who makes a mortgage.
2. He has rights, and is liable to certain duties as such. 1. He is quasi
tenant, at will; he is entitled to an equity of redemption after forfeiture. 2.
He cannot commit waste, nor make a lease injurious to the mortgagee. As between
the mortgagor and third persons, the mortgagor is owner of the land. Dougl. 632;
4 M'Cord, R. 310; 3 Fairf. R. 243; but see 3 Pick. R. 204; 1 N. H. Rep. 171; 2
N. H. Rep. 16; 10 Conn. R. 243; 1 Vern. 3; 2 Vern. 621; 1 Atk. 605. He can,
however, do nothing which will defeat the rights of the mortgagee, as, to make a
lease to bind him. Dougl. 21. Vide Mortgagee; 2 Jack. & Walk. 194.
MORTIFICATION, Scotch law. This term is nearly synonymous with
MORTMAIN. An unlawful alienation of lands, or tenements to any
corporation, sole or aggregate, ecclesiastical or temporal. These purchases
having been chiefly made by religious houses, in consequence of which lands
became perpetually inherent in one dead hand, this has occasioned the general
appellation of mortmain to be applied to such alienations. 2 Bl. Com. 268; Co.
Litt. 2 b; Ersk. Inst. B. 2, t. 4, s. 10; Barr. on the Stat. 27, 97.
2. Mortmain is also employed to designate all prohibitory laws, which limit,
restrain, or annul gifts, grants, or devises of lands and other corporeal
hereditaments to charitable uses. 2 Story, Eq. Jur. 1137, note 1. See Shelf. on
Mortm. 2, 3.
MORTUARIES, Eng. law. These are a sort of ecclesiastical heriots,
being a customary gift claimed by and due to the minister, in many parishes, on
the death of the parishioner. 2 Bl. Com. 425.
MORTUUM VADIUM. A mortgage; a dead pledge
MORTUUS EST. A return made by the sheriff, when the defendant is dead,
as an excuse for not executing the writ. 4 Watts, 270, 276.
MOTHER, domestic relations. A woman who has borne a child.
2. It is generally the duty of a mother to support her child, when she is
left a widow, until he becomes of age, or is able to maintain himself; 8 Watts,
R. 366; and even after he becomes of age, if he be chargeable to the public, she
may, perhaps, in all the states, be compelled, when she has sufficient means, to
support him. But when the child has property sufficient for his support, she is
not, even during his minority, obliged to maintain him. 1 Bro. C. C. 387; 2
Mass. R. 415; 4 Miss. R. 97.
3. When the father dies without leaving a testamentary guardian, at common
law, the mother is entitled to be the guardian of the person and estate of the
infant, until he arrives at fourteen years, when he is able to choose a
guardian. Litt. sect. 123; 3 Co. 38; Co. Litt. 84 b; 2 Atk. 14; Com Dig. B, D,
E; 7 Ves. 348. See 10 Mass. 135, 140; 15 Mass. 272; 4 Binn. 487; 4 Stew. &
Part. 123; 2 Mass. 415; Harper, R. 9; 1 Root, R. 487.
4. In Pennsylvania, the orphans' court will, in such case, appoint a guardian
until the infant shall attain his fourteenth year. During the joint lives of the
parents, (q. v.) the father (q. v.) is alone responsible for the support of the
children; and has the only control over them, except when in special cases the
mother is allowed to have possession of them. 1 P. A. Browne's Rep. 143; 5 Binn.
R. 520; 2 Serg. & Rawle 174. Vide 4 Binn. R. 492, 494.
5. The mother of a bastard child, as natural guardian, has a right to the
custody and control of such child, and is bound to maintain it. 2 Mass. 109; 12
Mass. 387, 433; 2 John. 375; 15 John. 208; 6 S. & R. 255; 1 Ashmead, 55.
MOTHER-IN-LAW. In Latin socrus. The mother of one's wife, or of one's