MORTGAGE (rode). In early times the only way to create a mortgage under the common law was to give livery of seizure of a freehold estate, thus passing the estate to the pledgee and his heirs. Afterwards a peculiar form of mortgage was created as an estate for years. the only right of the mortgageor being to pay the debt on the day speci fied, and thus clear his land of the obligation. If he failed to do this the estate was lost beyond recovery. The modern doctrine that time is not of the essence of the con tract was established by equity courts and is founded on the distinction in Roman law between ltypollteca and pig ma; if the property was left in the bands of the mortgageor, the law of Itypotheca Avas applied; if given over to the mortgagee, the law of pig ads. While the common law considered a mortgage as a freehold estate, equity preferred to xtga•d it as a pledge, and, as equity is supreme within its own domain, the entire law relating to time subject has now come under the control of its courts, and the old feudal ideas have given way. Three views then might be taken—that a mortgage is an estate possessing all the common-law incidents except that it is not absolute until fore closure has been bad; that it is a quasi interest of the mortgagee in the land without those incidents; or that it is a pledge (ltypotheerc) with the right offoreclosure. In every mortgage the estate and the debt or obligation are distinct, and the mortgagee cannot have semin until the debt is due, though the decisions in some of the states seem to rec ognize a title before the time set for payment. Whether the assignnient of the debt do or do not carry the mortgage with it is also a point on which the laws of the different states are not uniform. A conditional sale is often closely akin to a mortgage. In the latter there is a,contraet right of the creditor to obtain the land at some time after the non-payment of a debt which is a charge on the land; while in a conditional ogie the contract stipulates that the vendor may repurchase at a fixed price; time exigence or non-existence of intention to procure a loan or obligation making the distinction. The i tendency of courts is to consider such an agreement a mortgage, if there he any doubt. Where there is clearly a conditional kale intended there is no equity of redemption in the vendor after the date specified. Tlds, it will be seen, makes it of great importance to ascertain the true nature of the contract. A recent case on the subject is that of Bassett va. Bradley, reported in the last (1880) volume of the Connecticut reports.
No special form of words is necessary to create a mortgage, if it be clear that the real property is held for payment of time obligation. Wherever the statute of frauds is in force, the mortgage must conform to its provisions. As to construction, parole evidence may be received to prove the existence of a condition, even though the deed seems on its face to be absolute. This, however, is allowed only when the parties have not reduced the whole of their negotiations to time form of a written contract; otherwise the usual rule as to written instruments applies. Though no special form of language must be used, yet the mortgage debt must be so described as to be intelligible to die exami nation of an interested party. If the obligation of the mortgage be to pay money it is almost always accompanied by it note or bond, but this is not necessary. If the obli gation be to perform or not to perform a particular act, a bond should be given. If the note be lost, the loss must lie set out in the pleadings, as it is the evidence of the debt which the mortgage is given to secure.
The rights and rejatimus mortgageor and mortgagee are governed by the local laws of tie states:- ilttiir that of The Mortgagdimr to pay before foreclosure, and of the mortgagee to hold the property for the debt. The provisions as to registration and foreclosure can be learned only by reference to the statutes of each state. Where the seizin is considered as in the mortgagee, he has the right to enter at any time, and, after entry, is regarded as a tenant in possession, and liable to the mon gageor for rents or profits received. No essential change in the property can be made by the mortgageor without the consent of his mortgagee. After foreclosure the mortgagee either takes Ow estate or the property is sold under statute regulations to satisfy the debt. He may bring an action for his debt in a court of common law if lie choose, but must do so, if at all, within the time set by the statute of limitations. The usual method of fore
closure is by bringing a bill in equity setting out all the particulars of the mortgage contract and asking that a day be appointed before which the debt must be paid or the foreclosure proceed. Notice must be given to all parties interested. If there be several mortgagees, the court will appoint a day before which the mortgageor must redeem, a sub sequent day before which the last mortgageor may assume the mortgage on which fore closure is asked, and so on up to the mortgagee who brings the petition. If payment be not made, a certificate of foreclosure is issued and recorded. If the mortgage be an absolute one, the foreclosing party acquires full title to the property; but a strict fore closure is unusual, the law generally providing that the land or other real property shall be sold at auction, and the claims paid in order of precedence, so far as the proceeds will allow. By common law, if the sum realized will not pay the amount of the debt, the mortgagee has no further remedy, but, by the laws of most of the states, the prop erty is appraised, and judgment given by the court of equity for the excess, though sometimes the mortgagee is sent to a court of law for remedy. The mortgagee may refuse to accept payment before the day fixed. A tender of payment on the proper day met by refusal will usually release the mortgageor, but tender after that •date is of no avail. The mortgagee may be compelled by law to give a release or quit claim deed after receiving payment, and it should always be required in order to make the record of title clear. Where the mortga. gee has had the right of entry, and has applied rents or profits to the payment of the debt, the mortgageor may by a bill in equity be made to account therefor: he is also liable for waste, or any act tending to injure permanently the value of the property. This follows from the doctrine. of equity that the seizin has not left the mortgageor. Assessments for public improvements in most states take pre cedence over mortgage liens. When a mortgaged property is sold it has been held in New York that the vendee does not become responsible for the mortgage debt beyond the value of the land, unless he specially assume the lien; but this is not the case in other states. Where the mortgage and debt are held to be one, they both pass on assignment of mortgage, but elsewhere they are severed. If the mortgage is paid in full by one of two or more mortgageors, the others arc compelled to contribute, and equity considers him as an assignee of the whole mortgage.
MORTIER,EDotarin ADOLPHE CASIMIR JOSErITE, Due de Treviso ; 1768-1835; first a soldier under the republic in 1790, adj.gen. in '93, in the battles of Mons, Bruxelles. Louvain. under gen. R:leher in 1794, repulsed the Austrians on the German frontier in 1796 and retook Mayence; gen. of division in 1799, charged by Napoleon with the con. quest of Hanover in 1803. made marshal in 1804. head of an army corps in 1805. dis tinguished for skill in making resistance to an overwhelming force of Russians at Leo. bmi the same year, in 1806 Hanover and making the siege of Stralsund; in 1907 best the Swedes at Anclam and Friedland; and at the peace of Tilsit June 21, was made governor of Silesia and duke of Treviso. 'In 1808 in Spain at the siege of Sara gossa. and the battles of Ocana and Gehora; in 1809-11, with the French army in the Russian campaign, received the order to blow up the Kremlin, and after the battle of Krasno6 in Nov. 1812 commanded the rear-guard in retreat; arrived at Frankfort-on the-Main late in 1812 and participated in the bloody battles of Bautzen, Dresden, and Leipsic early in 1813: fought in retreat with Napoleon in 1814, and when the latter was beaten, and at Elba. gave adhesion to the government of Louis XVIII. On the -eturn of Napoleon from Elba joined him, and received command of the eastern department of France. After the hundred days he was reinstated in office by Louis, became member of the chamber of deputies in 1816, and of the chamber of lords in 1819. After the revolution of 1830 he was made ambassador at St. Petersburg, grand chancellor of the legion of honor in 1831, minister of war and President of the council under Louis Philippe in 1834-35, and died by a missile from the infernal machine of Fieschi while engaged in a public review by the king's side.