These are the essential parts of a mortgage-deed, which is varied according to the estate or interest in the lands which the mortgagor conveys to the'mortgagee, and according to the special of the parties. By the execution of the deed, the estate of mortgagor in the lands mortgaged is conditionally transferred to the mortgagee, but the mortgagor's estate is not forfeited till he makes default in payment of the money borrowed and interest at the time named in the deed. The money borrowed is however seldom paid at the time agreed on, the consequence of which is that the mortgagor's estate is forfeited by his not fulfilling the condition, and the mortgagee becomes the absolute legal owner of the land, or of such estate in it as was conveyed to hint He can then bring an action of ejectment against the mortgagor, if the mortgagor is in possession of the land, without giving him notice ; and he can do this even before default in payment, unless it is agreed by the mortgage-deed that the shall remain in possession till he makes default, end a clause to effect is commonly inserted in the deed. After the mortgage is made, the mortgagor cannot make a lease of the lands without the mortgagee's consent, for he has no interest in the Land out of which he can create a legal estate ; and if any such lessee gets possession of the land, the•mortgagee may eject him. But the lessee who claims by a title prior to the mortgage is not affected by the mortgage transaction, though, after default is made and ho has notice from the mortgagee, lie is bound to pay to him the future rents and those which are then due.
There has been considerable discussion as to the nature of the relation of the mortgagor in possession and the mortgagee ; and this relation has been supposed to be that of tenant and landlord, the nature of the tenancy varying according as wo contemplate it before or after default. But this seems an erroneous view of the legal effect of the contract, and the supposition of a tenancy is perfectly 'melees; for the explanation of the rights either of the mortgagor or mortgagee, which are determined by the instrument of mortgage, and by the well established jurisdiction of courts of equity in matters of mortgage.
From the time of default being made, the several interests of the mortgagor and the mortgagee in the Land must be considered as chiefly belonging to the jurisdiction of equity. When the mortgagee, by default of the mortgagor, has become the absolute legal owner of the lands, the mortgagor possesses what is called the equity of redemption. This equity of redemption is considered by courts of equity as an estate in the land : it may be devised by the mortgagor, and, in vase of his intestacy, it will descend to his heir; • it may be sold, or it may be mortgaged; it is subject both to dower On equity, by 3 & 4 Win. IV., c. 103) and curtesy; and it maybe settled like a legal estate.
By the statute 1 Viet., c. 28, made for the purpose of explain
ing the statute of limitations (3 & 4 Wm. IV., c. 27), it was enacted, That any person entitled to or claiming under any mortgage of land (as defined by the last-mentioned act) may snake an entry or bring an action at law or suit in equity, to recover such Laud, at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to snake such entry or bring such action or suit in equity shall have first accrued. This act was passed to protect the mortgagee who allows the mortgagor to continue in possession of the land or in the receipt of the rents and profits ; and it secures to him his rights for twenty years after the last payment of principal or interest by the mortgagor. By the 3 & 4 Wm. IV., c. 27, when a mortgagee has got possession of the land or receipt of the profits, the mortgagor, or the person claiming through him, can only bring a suit to redeem the lands within twenty years next after the commencement of such possession or receipt, or within twenty years from the time when the mortgagee or the person claiming through bins last acknowledged in writing to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, his title of mortgagor or right to redemption. The mort gagor, or the person claiming under him, may therefore, at any time within the limits above-named, tender to the mortgagee his principal money and interest, and claim a reconveyance of the lands ; and if the mortgagee will not accept the tender and reconvey, the mortgagor may compel him by filing a bill in equity for the redemption of his lands.
A mortgagee can transfer his mortgage to another. The transfer or assignment as it is generally called, consists of two parts expressed in one deed, the transfer of the debt, and the conveyance of the land, which is the security for the debt. If the mortgagor is not a party to the assignment, the assignee takes the mortgage exactly on the terms on which the assignor held it at the time of the assignment. If there fore the mortgagor should happen to have paid the whole or any part of the debt, the assignee, in coming to a settlement with him, must submit to allow such payment in diminution of the original debt which the assignor affected to assign to him.
Though the mortgagee, after the mortgagor's default in payment of the principal money and interest, has the absolute legal estate, he is still considered by courts of equity only to hold it as a security for his debt. The legal estate in the land will descend to the mortgagee's heir, or will pass by his will, if duly executed ; but the heir or devisee takes only the legal estate in the land, and the money or debt (as a general rule) belongs to the mortgagee's administrator or executor.