MORTGAGE. A general notion of n mortgage may be collected from the following passage in Littleton (§ 332), who treats of mort gages as then in use, under the general head of estates upon condition.
" If a feoffment be fluids, upon such condition, that if the feolTer pay to the fcolTee, at a certain day, 40/. of money, that then the feeffor may re-enter, &c.,—in this cane the feoffee is called tenant in morgage, which is as much to say, in French, as mortgage; and in Latin, mor teem radium. And it seemeth that the cause why it is called mort gage is, for that it is doubtful whether the feoffor will pap; at the day limited, such sum or not : and if lie doth not pay, then the land, which is put in pledge upon condition for the payment of the money, is taken from him for ever, and so dead to him, upon condition, &c. And if he doth pay the money, then the pledge is dead as to the tenant, itc." The money thus agreed to be paid by the feoffor must be supposed to be money borrowed from the feoffeo or the amount of a debt due from the feolTor to the feoffee, though Littleton does not expressly say so. According to the terms of this contract, if the feotfor or the feoffor's heir did not pay the money at the time appointed, the land became the absolute property of the feoffee.
The mortuum vadium of Glanville (book x.) is evidently a different thing from the mortuum vadium of Littleton, and Glanville's explana tion of the term seems more applicable to mortuum radium, than Littleton'a is to the mortgage which he describes. " \Then an immov able thing," says" is put into pledge, and seisin of it has been !delivered to the creditor for a definite term, it has either been agreed between the creditor and debtor that the proceeds and rents shall in the meantime reduce the debt, or that they shall in no measare be so applied. The former agreement is just and binding ; the other unjust and dishonest, and is that called a mortgage, but this is not prohibited by the king's court, although it considers such a pledge as a species of usury." (Beamea' Transt) Littleton describes the old and strict law of mortgage ; but the courts of equity gradually introduced such modifications as to con vert a mortgage from its ancient simplicity into a very artificial and complicated arrangement. A mortgage is a contract, and therefore requires two persons at least, one of whom borrows and the other lends money. The borrower Is the owner of land which he conveys or trans fers as a security to the lender of the money : the borrower is called the mortgagor, and the lender in called the mortgagee. The whole transactions properly termed a mortgage; but the mine is sometimes applied simply to the debt. The nature of this contract, as it is now understood, will beat appear from a brief eninnemtion of the essential terms of the instrument called a mortgage deed. For the sake of simplicity, the cage of a mortgage in fee may be taken as the example; and the remark, which follow must be considered as applicable to that description of mortgage.
The instrument of mortgage is a deed indented. It commences by
reciting that the mortgagor is the owner in fee simple of the lands which it is intended by the deed to convey to the mortgagee, and that the mortgagee has agreed to lend him a certain sum of money on the security of the Lands. It is then declared that, in pursuance of the said agreement, the mortgagee has paid to the mortgagor the sum of money which he (the mortgagee) has agreed to lend. The mortgagor then con veys to the mortgagee and his heirs the lands in question, with it condition that if the mortgagor, his heirs, executors, adminiatmters, or assigns, shall pay to tele mortgagee, his exedutore, &c., the sum of money borrowed, with interest for the same at the rate in the instru meet mentioned, upon a future day, which is named in the deed (generally a year from the date of the mortgage deed), without any deduction or abatement whatsoever, the deed shall then cease and be void to all intents and purposes, or that the mortgagee shall reconvey the premises to the mortgagor. In addition to this conveyance of the lands, the mortgagor promises and undertakes to pay the principal money borrewed, and interest on the same, at the rate and at the tinie before mentioned in the instrument; and ho also covenants (as the legal phrase is) that ho has full right to convey the lands in the man ner expressed in the previous part of the instrument. It is further agreed that, after the mortgagor shall have failed to pay the principal sum of money, and interest, or any part thereof, as before agreed, the mortgagee, his heirs, or assigns, may take possession of the lands so conveyed as aforesaid, and use and enjoy them, and take the rents and profits, without any hindrance or interruption from the mortgagor his heirs, executors, administrators, or assigns, or any other person or persons. It is also provided that until the mortgag,or shall have made such default in payment as aforesaid, he, his heirs, or assigns, shall hold and enjoy and receive the rents and profits of the Lands without any interruption or hindrance from the mortgagee, his heirs, or assigns. In many mortgage deeds it is also provided, that if the prin cipal money and interest, or Any part thereof, are not paid at the time agreed on, the mortgagee may sell the mortgaged lands (giving proper notice to the mortgagor of such his intention, if notice is provided for by the instrument): it is also provided that after paying out of the proceeds of the sale, and out of any rents or profits which lie may have received from the lands, the costs and expenses of the sale, and all other expenses incurred in the execution of the trust for sale, and retaining what is due to him for principal and interest, the mortgagee must pay the surplus, if any, to the mortgagor, his heirs, executors, administrators, or assigns, or as he or they shall direct. In deeds which contain a power of sale, it is usual to insert a proviso, that such power of sale is not to destroy or prejudice the mortgagee's right of foreclosure.