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. 3257.
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.
No comments:
Write comments