MORTGAGE, signifies a pawn of lands or tenements, or any thing immoveable, laid or bound for money borrowed, to be the creditor's for ever, if the money be not paid at the day agmed upon ; the creditor is then called tenant in mort gage, or mortgagee; and the pawner is called the mortgagor. It is called mort gage, because the estate becomes dead and forfeit as to the owner bynonpay ment at the day, and because, at strict law, the receipt of the rents and profits by the mortgagor does not go in discharge of the debt. Mortgages are either in fee, or for a term of years, and the mortgagor was formerly considered as tenant at will to the mortgagee, but he is now consider ed to have no legal estate whatever in the land.
The last and best improvement of mort. gages is the mode now adopted, where the mortgage is made for a term of years, that the mortgagor, She has also the fee, codenants to convey the fee to the mort gagee and his heirs, or any person whom he may appoint, in case of default in pay. went of the money. This mode unites the advantage of a mortgage in fee and for years. Although, after breach of the condition, the estate is absolute at com mon law in the mortgagee, yet a right of redemption subsists in equity, which is called the equity of redemption, from the benefit of which the heir of the mort gagor cannot be excluded by any co venant, provided the original intent is to mortgage the estate, and not to sell it at first. This right goes to those who would have had the estate if it had not been in cumbered. The rule is, once a mortgage and always a mortgage, and even a per son who comes in under a voluntary con veyance has the same equity of redemp tion as the mortgagor. Although there fore the mortgage is forfeited, yet a court of equity will allow the mortgagor, at any reasonable time, to recall or redeem the estate, paying the principal, interest, and costs. This, however, is not allowed, if
the mortgagee has been twenty years in possession. The heir at law may have the mortgage redeemed out of the per sonal assets in the first place as fat as they will extend. This privilege is also allowed to the person to whom land mort gaged is devised. Where a mortgagor conceals prior incumbrances upon mak ing a second mortgage, he loses the equity of redemption. Stat. 4. and 5. William and Mary, c. 16. Where a mortgage is made, the mortgagee should have the title deeds, as, under some circumstances, it has been held in equity that a subsequent mort gagee, who has the title deeds of the mort gagor, shall have a prior claim. A third mortgagee also, who buys up the first mortgage, will be preferred to the second if he had no notice of the second. By stat. 7. Geo. II. c. 20, where an action is brought to recover money due on mort gage, or an ejectment to get into the pos session of the lands, if the defendant ap pears, and within six months pays the debt, interest, and costs, the writ shall be staid. And where a bill is filed in equity by the mortgagee, to compel the mortgagor either to pay off the mort gage, or be foreclosed, or prevented from having his equity of redemption, the like time is allowed, and afterwards the estate is absolutely foreclosed. But the act does not extend to cases, where the mort gagor disputes the validity or fairness of the mortgage. By stat. 14. Geo. III. c. 79, sect. 2. estates in the West Indies may be mortgaged here at West India inte rest. A remainder man may force the tenant in tail to keep down the interest, but not to redeem a mortgage.