MORTGAGE. The conveyance of an estate or property by way of pledge for the security of debt, and to become void on pay ment of it. 4 Kent, Comm. 136.
An estate created by a conveyance absolute in its form, but intended to secure the per formance of some act, such as tbe payment of money, and the like, by the grantor or some other person, and to become void if the act 'is performed agreeably'to the terms -pre scribed at the tirne of making such convey ance. 1 Washburn, Real Prop. 475.
Both real and personal property may be merit, gaged, and in sulastantially the same manner, ex cept that a mortgage heiog in its nature a transfer uf title, the laws respectiog the necessity of posses sion of personal property and the nature uf in struments of transfer being different, require the transfer to be made differently in the two cases. The nature of the estate is indicated by the etymology of its name, mort-gage, —the French translation of the vadium mortuum, that is, dormant or dead pledge, in contrast with vadium vivtim, active or living one. They were both, ordinarily, securities for the payment of money. In the one there was no life or active effect in the way of creating the means of its redemption by producing rents, because, ordinarily, the mortgagor continued to hold poSsession and receive these. In the other, the mortgagee took possession and received the rents towards his debt, whereby the estate worked out as it were its own redemption. Besides, in the one case if the pledge is not redeemed, it is lost or dead as 'to the mortgagor; whereas in the other the pledge always survives to the mortgagor when it shall have accomplisked its purposes. Coote, Mortg. 4; Coke, Litt. 205. In the case of Welsh mortgages, however, which are now disused, the mortgagee entered, taking the rents and profits by way of interest on the debt, and held the estate till the mortgagor paid the principal.
Mortgages are to be distinguished from sales with a contract far re-purchase. The distinction is impertant, 2 Call, Va. 428; 7 Watts, Penn. 401;
but turns rather upon the evidence in each case than upon any general rule of distinetioh. 6 Blackf. Ind. 113; 15 Johns. N. Y. 205; 4 Pick. Mass. 349. And see 7 Cianch, 218; 12 Hew. 139; 3 Watts dr S. Penn. 384; 6 Mete. Mass. 479 ; 3 Gray, Mass. 594; 8 Paige, Ch. N. Y. 243; 4 Den. N. Y. 493; 27 Mo. 113; 5 Ala. N. s. 698; 28 2d. 226; 3 Tex. 119; 2 J. J. Marsh. Ky. 113; 3 id. 353; 2 Yerg. Tenn. 6; 4 Ind. 101; 3 Tex. 110; 10 Cal. 197: 37 Mc. 543; 28 Miss. 328; 7 Ired. Eq. No. C. 13, 167; 2 Seheales er L. Ir. Ch. 393.
A mortgage differs from a pledge : the general property passes by a mortgage, whilst by a pledge only the possession or, at most, a special property passes. Possession is inseparable from the nature of a pledge but is not necessary to a mortgage. 3 Mo. 516; 5 'Johns. N. Y. 258; 10 id. 741; 12 id. 146; 2 Pick. Mass. 610; 2 N. H. 13; 5 Vt. 532; 26 Me. 499.
Mortgages were at common law held convey-. ances upon condition, and unless the condition was performed at the appointed time the estate became abbe:lute; in equity, however, the debt was eon sidered as the principal matter, and the failure to perform at the appointed time a matter merely requiring compensation by interest in the W y of damages for the delay. This right to redeein be came known as the equity of redemption, and has been limited hy etatute, a common period being three years. Courts of law have now adopted the doctrines of equity with respect to redemption, end in other respects to a considerable extent. See 1 Washburn, Real Prop. 477.
An equitable mortgage is one in which the mortgagor does not actually convey the pro perty, but does some act by which he mani fests his determination to bind the same as a security. See EQUITABLE MORTGAGE.
A legal mortgage is a conveyance of pro perty intended by the parties at the time of making it to be a security for the perform ane,e of some prescribed act. 1 Washburn, Real Prop. 479.