BOOK THE SECOND. OF THE DIFFERENT SUBJECTS AND MODES OF MORTGAGE, AND ALSO OF THE TRANSFER OF MORTGAGE. CHAPTER I. OF THE SUBJECTS OF MORTGAGE. HAVING attempted to trace the progress of mortgages, from their origin at common law to their establishment with an equity of redemption, under the protection of the courts of equity; and having also treated of judgments, statutes and recognizances, it will next be proper to consider the subjects and modes of mortgage. The consideration of the subjects of mortgage we may briefly dismiss; for it may be laid down as a general proposition, with few exceptions, that every species of property, real or personal, corporeal or incorporeal, moveable, or immoveable, in possession, remainder, expectancy, or even in action, is the subject of mortgage. Manors, lands and tenements, freehold, copyhold and leasehold; remainders or re versions, rents, franchises, advowsons, rectories impropriate, tithes, bills of lading, ships, freightage, articles of merchandize, bills of exchange, debts, government annuities, title deeds, and even possibilities, may, according to their several natures, be conveyed, transferred, delivered or assigned, by way of mortgage security. The exceptions to the general rule appear to be -Pensions granted for supporting the grantee in the performance of future services, such as the pension granted by the 5th Ann. cap. 4, for the more honourable support of the dignities of the Duke of Marlborough (a) and his posterity, payable out of the revenue of the Post Office; the salaries of the judges, given for the support of the dignity of their office (b); annuities pro consilio impendendo (c) ; full pay and half pay of an officer (d); the commission of an officer (e); and (since the 57th Geo. III. cap. 99) church livings (f); and the future interest of a married woman, in chattels personal, in the event of her surviving her husband, and the latter dying prior to the chattel personal being reduced into possession (g); and also, as it seems, the life (a) Davis v. the Duke of Marlborough, 1 Swanst. 74. (c) 1 Dyer, 2 a, n. (b) Ibid. arguendo. (d) Barwick v. Reade, 1 Wm. Blackst. 627; Flarty v. Odlum, 3 Term Rep. 681; Lidderdale v. the Duke of Montrose and another, 4 Term Rep. 248; Stone v. Lidderdale, 3 Anstr. 533; M'Carthy v. Goold, 1 Ball & Beattie, 387. (e) Collyer v. Fallon, 1 Turner & Russell, 459. (f) Vide infra, Book II. c. 11. (g) Vide infra. interest of a married woman in a personal fund beyond the duration of the coverture (h). We shall in the subsequent chapters of this book, consider the modes by which the different species of property may become the subject of mortgage, and also of the transfer of mortgages generally, and of the stamps on mortgages and assignments of mortgage. (h) Stiffe v. Everitt, 1; Mylne v. Craig, 37. CHAPTER II. OF MORTGAGES OF FREEHOLDS. In its commencement, the form of the mortgage security was simple. The old mortuum vadium has been already described (a). The mortgage, which supplanted it, has been shewn (b) to have been a feoffment, with a condition contained in the same deed, or sometimes in a separate deed of defeasance (executed at the same time) to be void on payment of a given sum, at a given time. On performance of the condition, the mortgagor, as before shewn (c), was restored to his old estate, paramount all the charges and incumbrances of the feoffee. The mortgage, by way of absolute conveyance, with the clause of redemption in a separate deed of defeasance, being liable to be made the means of fraud, was much discountenanced by the Courts. Lord Chancellor Talbot, in Cotterel v. Purchase (d), observes, "In the northern parts it is the custom in drawing mortgages to make an absolute deed, with a defeasance separate from it; but I think it a wrong way, and to me it will always appear with a face of fraud, for the defeasance may be lost, and then an absolute conveyance is set up. I would discourage (a) Supra. (b) Supra. (d) Cotterel v. Purchase, supra. the practice as much as possible." And in a case (e) in which lands were conveyed by an absolute deed of conveyance, and there was a separate agreement between the parties, that on the creditor being reimbursed what he advanced, and 50l. over for improvements, he should reconvey. The mortgagor died, leaving an infant son, who, within one year after he came of age, but twelve years after the transaction, filed his bill to redeem. Lord Chancellor Hardwicke said, " the not inserting the clause in the deed was an imposition on the mortgagor, but the reason was, that he was in distress, and therefore turned it into the shape of a purchase, but still he meant it as a security. Wherever the Court finds such a clause as this, it adheres to it strictly, to prevent the equity of redemption from being entangled to the prejudice of the mortgagor," and he decreed a redemption with costs against the mortgagee. But the great objection to this form of mortgage was, that the estate might be conveyed to a bona fide purchaser without notice; in which case the right to redeem would be wholly defeated, and the mortgagor be left to his remedy against the mortgagee for the fraud. In consequence of the discouragement it received, this mode of mortgage has become almost obsolete. In some instances, the mortgage used to be effected by a demise and redemise, that is, the mortgagor demised the lands to the mortgagee for a long (e) Baker v. Wind, 1 Ves. 160. |