What May be Mortgaged. Both real and personal property may be mortgaged, and in substantially the same manner, except that a mortgage being in its nature a transfer of title, the law respecting the necessity of possession in case of personal property and the nature of the instruments of transfer, require the transfer to be made differently in the two cases.
All kinds of property, real or persona], which are capable of an absolute sale, may be the subject of a mortgage; rights in re mainder and reversion, franchises, and chos es in action, may, therefore, be mortgaged. But a mere possibility or expectancy, as that of an heir, cannot ; 2 Story, Eq. Jur. § 1012 ; 4 Kent 144; Wilson v. Wilson, 32 Barb. (N. Y.) 328 ; Low v. Pew, 108 Mass. 347, 11 Am. Rep. 357; Hosmer v. carter, 68 Ill. 98 (see EXPECTANCY).
Where real estate is mortgaged, all acces sions thereto, subsequent to the mortgage, will be bound by it; Argues v. Wasson, 51 Cal. 620, 21 Am. Rep. 718; Brough ton v. Powell, 52 Ala. 123 ; Butt v. Ellett, 19 Wall. (U. S.) 544, 22 L. Ed. 183 ; Philadel phia, W. & B. R. Co. v. Woelpper, 64 Pa. 366, 3 Am. Rep. 596; if specifically stated to bind after-acquired property, it will have that effect ; Hoyle v. R. Co., 51 Barb. (N. Y.) 45; Rowan v. Rifle Mfg. Co., 29 Conn. 282.
It may now be considered as settled that a mortgage of after-acquired property is valid and equity will give effect to it, wheth er the title subsequently acquired by the mortgagor is legal or equitable; Bear Lake & River Waterworks & Irrig. Co. v. Garland, 164 U. S. 15, 17 Sup. Ct. 7, 41 L. Ed. 327; Brady v. Johnson, 75 Md. 445, 26 Atl. 49, 20 L. R. A. 737; Hickson Lumber Co. v. Lum ber Co., 150 N. C. 282, 63 S. E. 1045, 21 L. R. A. (N. S.) 843, and note on the validity of such mortgages other than of railroads. But it was held in Loth v. Carty, 85 Ky. 591, 4 S. W. 314, that a mortgage of property to be acquired in futuro was constructively fraudulent as to the creditors of the mort gagee.
A mortgage to secure advances is valid ; Seymour v. Darrow, 31 Vt. 122 ; • Lawrence v. Tucker, 23 How. (U. S.) 14, 16 L. Ed. 474; Hyde v. Shank, 77 Mich. 517, 43 N. W. 890; Union Nat. Bank v. Moline, Wilbun & Stod dard Co., 7 N. D. 201, 73 N. W. 527 ; Citi zens' Savings Bank v. Kock, 117 Mich. 225, 75 N. W. 458; Bunker v. Barron, 93 Me. 87, 44 Atl. 372 ; but if a second mortgage be exe cuted of which the holder of the first mort gage have notice before he makes advances the latter will not be protected; Appeal of Bank of Montgomery County, 36 Pa. 170;
9 H. L. C. 514 ; but see, contra, McDaniels v. Colvin, 16 Vt. 300, 42 Am. Dec. 512; but he will be where the first mortgagee binds himself to make the advances, though they be made after the execution of the subse quent mortgage ; Ladue v. R. Co.; 13 Mich. 380, 87 Am. Dec. 759 ; Boswell v. Goodwin, 31 Conn. 74, 81 Am. Dec. 169 ; and in either case it is said the first mortgagee will be protected if the advances be made without notice of the subsequent mortgage ; id.; the record of the second mortgage is construc tive notice ; Ladue v. R. Co., 13 Mich. 380, 87 Am. Dec. 759.
Land in one state may be mortgaged to a bank of another to secure a debt ; Lathrop v. Commercial Bank, 8 Dana (Ky.) 114, 33 Am. Dec. 481. Rents and profits may be mortgaged ; Ryan v. Bank, 100 Ill. App. 251, affirmed 199 111. 76, 64 N. E. 1085 ; and the mortgage of them does not interfere with the equity of redemption ; Ortengren v. Rice, 104 III. App. 428 ; but nothing can be mort gaged except things which can be sold; Men denhall v. R. Co., 36 Pa. 145.
As to the form, a mortgage must be in writing, when it is intended to convey the le gal title; Porter v. Muller, 53 Cal. 677; but it need not be under seal ; Woods v. Wallace, 22 Pa. 171; though at common law it must be by deed ; Hebron v. Town of Centre Har bor, 11 N. H. 571; but no precise form of words is necessary ; Baldwin v. Jenkins, 23 Miss. 206. It may be given to mortgagees in their firm name ; Orr v. How, 55 Mo. 328. It may be written on more than one sheet of paper, If the testatum clause, signatures, seals and acknowledgment are on one sheet ; Norman v. Shepherd, 38 Ohio St. 320. It is either in one single deed, which contains the whole contract, which is the usual form, or it is two separate instruments, the one con taining an absolute conveyance and the oth er a defeasance ; Dow v. Chamberlin, 5 Mc Lean 281, Fed. Cas. No. 4,037 ; Payne's Adm'r v. Patterson's Adm'rs, 77 Pa. 134; Moors v. Albro, 129 Mass. 9 ; Knowlton v. Walker, 13 Wis. 264 ; Robinson v. Willoughby, 65 N. C. 520 ; Poston v. Jones, 122 N. C. 536, 29 S. E. 951; Waters' Lessee v. Riggin, 19 Md. 536.