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Bouvier's Law Dictionary, Revised 6th Edition (1856)

MORTGAGE, contracts, conveyancing. Mortgages are of several kinds: as the
concern the kind of property, mortgaged, they are mortgages of lands,
tenements, and, hereditaments, or of goods and chattels; as they affect the
title of the thing mortgaged, they are legal and equitable.
2. In equity all kinds of property; real or personal, which are capable
of an absolute sale, may be the subject of a mortgage; rights in remainder
and reversion, franchises, and choses in action, may, therefore, be
mortgaged; But a mere possibility or expectancy, as that of an heir, cannot.
2 Story, Eq. Jur. Sec. 1021; 4 Kent, Com. 144; 1 Powell, Mortg. 17, 23; 3
Meri. 667.
3. A legal mortgage of lands may be described to be a conveyance of
lands, by a debtor to his creditor, as a pledge and security for the
repayment of a sum of money borrowed, or performance of a covenant; 1 Watts,
R. 140; with a proviso, that such conveyance shall be void on payment of the
money and interest on a certain day, or the performance of such covenant by
the time appointed, by which the conveyance of the land becomes absolute at
law, yet the, mortgagor has an equity of redemption, that is, a right in
equity on the performance of the agreement within a reasonable time, to call
for a re-conveyance of the land. Cruise, Dig. t. 15, c. 1, s. 11; 1 Pow. on
Mortg. 4 a, n.; 2 Chip. 100; 1 Pet. R. 386; 2 Mason, 531; 13 Wend. 485; 5
Verm. 532; 1 Yeates, 579; 2 Pick. 211.
4. It is an universal rule in equity that once a mortgage, always a
mortgage; 2 Cowen, R. 324; 1 Yeates, R. 584; every attempt, therefore, to
defeat the equity of redemption, must fail. See Equity of Redemption.
5. As to the form, such a mortgage must be in writing, when it is
intended to convey the legal title. 1 Penna. R. 240. It is either in one
single deed which contains the whole contract -- and which is the usual form
-- or, it is two separate instruments, the one containing an absolute
conveyance, and the other a defeasance. 2 Johns. Ch. Rep. 189; 15 Johns. R.
555; 2 Greenl. R. 152; 12 Mass. 456; 7 Pick. 157; 3 Wend, 208; Addis. 357; 6
Watts, 405; 3 Watts, 188; 3 Fairf. 346; 7 Wend. 248. But it may be observed
in general, that whatever clauses or covenants there are in a conveyance,
though they seem to import an absolute disposition or conditional purchase,
yet if, upon the whole, it appears to have been the intention of the parties
that such conveyance should be a mortgage only, or pass an estate
redeemable, a court of equity will always so construe it. Vern. 183, 268,
394; Prec Ch. 95; 1 Wash. R 126; 2 Mass. R. 493; 4 John. R. 186; 2 Cain. Er.
124.
6. As the money borrowed on mortgage is seldom paid on the day
appointed, mortgages have now become entirely subject to the court of
chancery, where it is an established rule that the mortgagee holds the
estate merely as a pledge or security for the repayment of his money;
therefore a mortgage is considered in equity as personal estate.
7. The mortgagor is held to be the real owner of the land, the debt
being considered the principal, and the land the accessory; whenever the
debt is discharged, the interest of the mortgagee in the lands determines of
course, and he is looked on in equity as a trustee for the mortgagor.
8. An equitable mortgage of lands is one where the mortgagor does not
convey regularly the land, but does some act by which he manifests his
determination to bind the same for the security of a debt he owes. An
agreement in writing to transfer an estate as a security for the repayment
of a sum of money borrowed, or even a deposit of title deeds, and a verbal
agreement, will have the same effect of creating an equitable mortgage. 1
Rawle, Rep. 328; 5 Wheat. R. 284; 1 Cox's Rep. 211. But in Pennsylvania
there is no such a thing as an equitable mortgage. 3 P. S. R. 233. Such an
agreement will be carried into execution in equity against the mortgagor, or
any one claiming under him with notice, either actual or constructive, of
such deposit having been made. 1 Bro. C. C. 269; 2 Dick. 759; 2 Anstr. 427;
2 East, R. 486; 9 Ves. jr. 115; 11 Ves. jr. 398, 403; 12 Ves. jr. 6, 192; 1
John. Cas. 116; 2 John. Ch. R. 608; 2 Story, Eq. Jur. Sec. 1020. Miller, Eq.
Mortg. passim.
9. A mortgage of goods is distinguishable from a mere pawn. 5 Verm.
532; 9 Wend. 80; 8 John. 96. By a grant or conveyance of goods in gage or
mortgage, the whole legal title passes conditionally to the mortgagee, and
if not redeemed at the time stipulated, the title becomes absolute at law,
though equity will interfere to compel a redemption. But, in a pledge, a
special property only passes to the pledgee, the general property remaining
in the pledger. There have been some cases of mortgages of chattels, which
have been held valid without any actual possession in the mortgagee; but
they stand upon very peculiar grounds and may be deemed exceptions to the
general rule. 2 Pick. R. 607; 5 Pick. R. 59; 5 Johns. R. 261; Sed vide 12
Mass. R. 300; 4 Mass. R. 352; 6 Mass. R. 422; 15 Mass. R. 477; 5 S. & R.
275; 12 Wend. 277: 15 Wend. 212, 244; 1 Penn. 57. Vide, generally,, Powell
on Mortgages; Cruise, Dig. tit. 15; Viner, Ab. h.t.; Bac. Ab. h.t., Com.
Dig. h.t.; American Digests, generally, h.t.; New, York Rev. Stat. p. 2,
c. 3; 9 Wend. 80; 9 Greenl. 79; 12 Wend. 61; 2 Wend. 296; 3 Cowen, 166; 9
Wend. 345; 12 Wend. 297; 5 Greenl. 96; 14 Pick. 497; 3 Wend. 348; 2 Hall,
63; 2 Leigh, 401; 15 Wend. 244; Bouv. Inst. Index, h.t.
10. It is proper to, observe that a conditional sale with the right to
repurchase very nearly resembles a mortgage; but they are distinguishable.
It is said that if the debt remains, the transaction is a mortgage, but if
the debt is extinguished by mutual agreement, or the money advanced is not
loaned, but the grantor has a right to refund it in a given time, and have a
reconveyance, this is a conditional sale. 2 Edw. R. 138; 2 Call, R. 354; 5
Gill & John. 82; 2 Yerg. R. 6; 6 Yerg. R. 96; 2 Sumner, R. 487; 1 Paige, R.
56; 2 Ball & Beat. 274. In cases of doubt, however, courts of equity will
always lean in favor of a mortgage. 7 Cranch, R. 237; 2 Desaus. 564.
11. According to the laws of Louisiana a mortgage is a right granted to
the creditor over the property of his debtor, for the security of his debt,
and gives him the power of having the property seized and sold in default of
payment. Civ. Code of Lo. art. 3245.
12. Mortgage is conventional, legal or judicial. 1st. The conventional
mortgage is a contract by which a person binds the whole of his property, or
a portion of it only, in favor of another, to secure the execution of some
engagement, but without divesting himself of the possession. Civ. Code, art.
3257.
13.-2d. Legal mortgage is that which is created by operation of law:
this is also called tacit mortgage, because it is established by the law,
without the aid of any agreement. Art. 3279. A few examples will show the
nature of this mortgage. Minors, persons interdicted, and absentees, "have a
legal mortgage on the property of their tutors and curators, as a security
for their administration; and the latter have a mortgage on the property of
the former for advances which they have made. The property of persons who,
without being lawfully appointed curators or tutors of minors, &c.,
interfere with their property, is bound by a legal mortgage from the day on
which the first act of interference was done.
14.-3d. The judicial mortgage is that resulting from judgments,
whether these be rendered on contested cases or by default, whether they be
final or provisional, in favor of the person obtaining them. Art. 3289.
15. Mortgage, with respect to the manner in which it binds the property,
is divided into general mortgage, or special mortgage. General mortgage is
that which binds all the property, present or future, of the debtor. Special
mortgage is that which binds only certain specified property. Art. 3255.
16. The following objects are alone susceptible of mortgage: 1.
Immovables, subject to alienation, and their accessories considered likewise
as immovable. 2. The usufruct of the same description of property with its
accessories during the time of its duration. 3. Slave's. 4. Ships and other
vessels. Art. 3256.