CAP. XIV. Of Notice express and implied,
CAP. XV. To whom Lands forfeited under a
Mortgage shall belong,
CAP. XVI. How a Wife is interested in her
Husband's Estate mortgaged, and other
Matters relative thereto,
CAP. XVII. Of Mortgages made by the Hus-
band and Wife, or the Husband alone of
the Wife's Estates, and his Interest in
Mortgage-money due to her, -
CAP. XXIII. Of Equitable Mortgages, Ven-
dor's Lien, Stock, Copyholds, Colonies,
Ships, Statutes, Recognizances, Crown
Debts, Lease and Loun, Bankruptcy,
Ejectment, Election, Merger,
OF THE ORIGIN AND NATURE OF MORTGAGES.
ORIGIN of mortgages, page 1, 2, n.—Mortgage and pledge distinguished, 3.—
Licence to mortgage formerly requisite, ib.-Vadium vivum, et mortuum, 3, 4.
Ancient and modern mode of mortgaging described, 4. 8. 4, n.-Defeasance,
4, 5, n. 8, n.-on warrant of attorney, 5, n.-Conditions, 5, 6.-Mortgage in
fee, 6, 7-mortgage for years, 7.-Dower and curtesy, 7, n.-Condition for
redemption, and proviso for re-conveyance, distinguished, 8, n.-Conveyance
after default, 9.-Mortgage with power of sale, 9, 10, 11, 12.-Bond to perform
covenants, 13, 14.-Mortgage bond, 15, 16, n.
OF THE POSSESSION OF THE THING MORTGAGED, AND WHEN IT OUGHT TO
BE GIVEN BY THE MORTGAGOR TO THE MORTGAGEE.
Statutes requiring mortgage to be free from fraud, 16, 17.-What may be mort-
gaged, ib.-Mortgage by tenant at will, 18.-Mortgage by tenant in tail and
remainder-man, ib.-Joint tenants, ib.-Retension of possession, when a fraud,
19. 21, 22, & n.-Statute of fraudulent conveyances, 20, n.-Mortgage of
choses in action, debts, tolls, corporation bonds, canal shares, and legacies,
24, n. Mortgage of vessels at sea, 25.-Mortgage of ships in river, 30.-
Requisites to mortgage of ship, 25, n.-Mortgagee legal owner, and liable
to repair, 31, n.-Effect of delivery of bill of sale of ship at sea, 35.-Mortgage
of goods at sea, 26.-Bill of lading, 26, n. 27, n. 29, n. 30.-Stoppage in
transitu, 27.-Observations on Lichbarrow v. Mason, 28, n.-Mortgage by
factor or agent, ib. 29, n.-Possession after mortgage no fraud, if delivery
cannot be made, 31-nor if possession be without privity of assignee, 31, n.-
Gift, 32.-Contingent debt, ib.-Duress, 33.-Parol evidence, ib.-Possession
by mortgagor entrusted to sell, 33, 34, n.-Possession no fraud if part of trust,
34-or it be pursuant to deed, 36, n.—but it must not be joint but exclusive,
34, n.-Possession after assignment for creditors, 36.-Possession must ac-
company and follow deed, ib.-Evidence admitted to prove possession, con-
sistent with deed, 39-Modern rules respecting, 37, n. 38, n.-Cases to which
the statute of 21 Jac. 1. c. 19. s. 10, 11, has been held to apply, 43, n.-
n.-Cases
to which that statute does not extend, 44, n. to, 47 n.-13 Eliz. and 21 Jac. 1. dis-
tinguished, 44.-Notice and registration compared, 47.-27 Eliz. c. 4. s. 2. 48.
Retaining title deeds after mortgage, ib.-Retaining title deeds is, to realty.
what detention of possession is to personalty, 49.-Retension of possession of
goods and title deeds, distinguished, 50.-No culpability attaches to mortgagee
of reversion from his not having title deeds, 50, 51.-Second mortgagee having
deeds without notice preferred, 52-so if he obtain legal term, ib.-Persons
entitled to custody of title deeds, 52, n.-Deeds not taken from second mort-
VOL. I.
Who may not mortgage, 58.-Who may mortgage, 59.-Mortgages under
powers, 60, n.-What implies power to mortgage, 61, 62, n. 66. 68. 70. 72.——
"Profits" implies power to mortgage, 61. 73, 74-especially if yearly profits
cannot raise sum within time, 63.-" Profits" carries fee, 71, n.-Trust by will
to pay debts confers power to mortgage, 65;—and trustees may mortgage
without waiting for decree, 65.-Power to portion includes power to raise it by
mortgage, 66.—Three rules of construction as to raising portions, 68, n.—
Lord Cowper's two rules, 81, n.- -Portions raiseable out of rents, when, 68.
Of interest on portions, 67, n. 72. 79, n. 99, n.-Statute of fraudulent devises,
69, n. When legacies coupled with debts may be raised by mortgage, 71, n.
Power to charge implies power to mortgage with interest, 72.-Power must
be recited or taken notice of, ib.-Contingent term vests, when, 74. 78, n. 80.
Mortgage of reversionary term, 97, n. 99, n.; is reluctantly decreed, 79. 93.
98, n.-Portions or maintenance raiseable although one parent alive, 75, 76,
n. 77. 82. 84-except as to contingent portion, 78.-Words, "after death of
father and mother," rejected, 76.-Maintenance, 81, n. 86, 87. 89-As to
arrears of maintenance, 90.--Reversionary term not mortgageable for main-
tenance, 100, n.-Trust, a law to trustee, 83.-Younger children, 84, n.—
Portions postponed till term in possession, 88.-Other provisions furnish no
ground to suspend portions, 91.-Portion may be vested at twenty-one, though
not then payable, 92.-No time fixed for payment of portion, it can be raiseable
by rents only, 92.-Term cannot be mortgaged till in possession, sed qu., 96, n.
General rules as to raising portions, 94. 99, n. 100.-Executor may mort-
gage term, 101.-Specific or residuary legatee cannot follow property, 102-
except there be fraud, 102.-Power of executor, 102, n.—Mortgage by exe-
cutor bad if there be collusion, gross negligence, or notice, ib.-Mortgage
by one executor to his companion, or for debt due from testator, 104, n.—
Mortgage of realty by executors, ib.-Executors may be mortgagees, 105, n.;
but cannot lend money on personal security, nor after decree, ib.-Benefit
accrues to estate, loss to executor, ib.
HOW A MORTGAGE IS CONSIDERED IN EQUITY.
Origin of equitable jurisdiction, 107.-Mortgage a creature of equity, and con-
sidered a chattel, though in fee, 108, & n.-Debt paid, mortgagee a trustee, 109.
Mortgage in fee not a total revocation, 110; except it be to devisee, 112.
and then qu., 116-or unless uses beyond mortgage are declared, 112, n.—
Tenant in tail cannot mortgage without revoking will, 113, n.-Conveyance for
debts a revocation pro tanto only, 114, n.-Bankruptcy the same, ib.---Use
beyond mortgage annulled, if contrary to apparent intent, ib.-Testator equitable
owner after mortgage, ib.-Harkness v. Bayley over-ruled, 115, n.--Equity of
redemption inseparably incident to mortgage, 116.-Once a mortgage, and
always a mortgage, 116, n. 117, n. 128.-Redemption cannot be prevented by
special agreement, 117, n.-Restraint on redemption void, 117, 118, 119. 122.
124; except under family arrangement, 127. 129; which is proveable by parol,
129.-Redemption cannot be restrained, though proviso be in separate
defeasance, 120.-Defeasance supplied on parol evidence, 120, n. 151.-
Costs, 121, n.-Agreement at time of mortgage to make absolute conveyance
conditional, void, 121.-Mortgagee may purchase equity of redemption,
122, n.; contra if parties are attorney and client, 124, n.--Absolute convey-
ance with power of sale, implies mortgage, ib.-Matter subsequent will not
make that a mortgage which was no so originally, 125.-What circumstances
will convert absolute conveyance into mortgage, 116, n. 125, n. 127; but right
of pre-emption may be reserved to mortgagee, semb., 125.-Subsequent agree-
ment for absolute purchase, with proviso for re-conveyance, valid, 126.-
Agreement to redeem after release of equity of redemption binding, 126. 145.—
Demand of interest after absolute conveyance makes it a mortgage, 151.-
Fetters on redemption no avail, 132.-Absence of covenant to pay money, no
objection, 132 to 134.-Lien on mortgage not reciprocal, 136, n.-Proviso for
re-purchase allowed, 138-distinguished from mortgage, 130. 134-court
against, 139, n.-frequent in annuity deeds, ib.-Conditional sale, 139, n.-Mort-
main act, ib.-what dispositions within, 141, n. 142, n.-its policy vindicated,
143, n.-Rules in equity as to parol evidence, 143. 147, n. 148, 149, 150.—
Debt may be discharged by parol, 143, 144, n.-Trust of mortgage executed,
though not in writing, 145.-Trust confessed by answer, or admitted by trustee,
binding, 145, n. 151.-Parol evidence not admitted between co-mortgagors to
discharge assets of one deceased, 146-nor to shew, that by naming executor,
testator meant to cancel his debt, ib.-Proviso for redemption supplied by
parol, 151.-Equitable mortgage, 151, n.-Debt the principal, land the inci-
dent, 145.-Mortgagor need not join in transfer of mortgage, 152-unless
mortgagee be in possession, 153-but desirable that he should join, 152, n.
if not, notice of transfer should be given him, 153, n.-When new covenant
for payment of money necessary, ib.-Of turning arrears of interest into prin-
cipal, 154, n.—Mortgagor, how affected by account between mortgagee and
assignee, ib.
Mortgagor's interest till default, 155.-Mortgagor and tenant at will compared, ib.
Present view of mortgagor's interest till default, 157, n.-Mortgagor not a
disseisor at election, but his tenant a trespasser, 157, 8. 161.-Mortgagor's
lessee may be evicted by ejectment of mortgagee without notice of mortgage,
or notice to quit, 159.-Lessee, to be secure, should examine lessor's title, 160.
Emblements, 161.-Mortgagor bound by his own lease, 163-and mortgagee
too, if he acknowledge it, ib.-Covenant for mortgagor to enjoy till default runs
with assignment of mortgage, ib.-Effect of mortgagee's admission, that he is
out of possession, 164.-Waste by mortgagor restrained, 165.-Mortgagor
cannot bar mortgagee by fine and non-claim, ib.--or dispute mortgagee's title,
166 or set up prior lease against ejectment by mortgagee, 166, n.-Recovery
by tenant in tail confirms prior mortgage, 165.-Mortgagor in possession gains
parish settlement, 166, 167, n.-Mortgagee shall not be put to his indebitatus
assumpsit, 168.-Mortgagee bound to re-assign on tender of principal, in-
terest, and costs, ib.-Statute staying proceedings on payment of money into
court, ib.-Recent cases at law on this statute, 169, n.-Recent cases in equity
on the same statute, 170, n.-Mortgagor in possession may vote for knights of
the shire, and so may mortgagce if in possession, ib.
OF THE INTEREST OF THE MORTGAGEE.
Mortgagee's estate before forfeiture, 171.-Leases by mortgagor, void against
mortgagee, ib.-contrà, if lease be prior to mortgage, 173-but mortgagee may
recover in ejectment, ib.-Mortgagee, on giving tenant notice of mortgage,
entitled to growing rent and rent in arrear, 172. 174, 175, n. 176, n.—What
if lease be before or after mortgage, 176, n.-Mortgagor and mortgagee should
join in granting leases, 177, n. 186.-Interest, not rent, secured by mortgage,
175, n.-Of attornment, 173, 4, n.—Mortgagee of leaseholds for whole term liable
for rent and repairs, 178. 184-though he lose his money or never enter, 178.-
Reservation of a day out of term saves mortgagee, 181.—Equitable mortgagee
compellable to take whole term, 182.-If mortgagee enter he becomes subject to
covenants, 182, 183, 184, n.-Demand of rent equal to actual entry, 183, n. 184, n.
-Mortgagee of ship not liable for necessaries, but must repair, 183, n.—
Caution to mortgagee to take under-lease instead of assignment, 185, n.-Of
covenants running with land, 187.-Till foreclosure, mortgagee has but a
chattel, ib.-Mortgagee in possession cannot lease to bind mortgagor, 188.-
Mortgagee cannot cut timber, 188, 189.-Expences convertible into principal,
189.-Mortgagee entitled to benefit of attendant terms, ib.-and to good title
acquired after mortgage, 190.-Recovery by tenant in tail lets in preceding
incumbrance, ib.-Elect of tenant in tail's bankruptcy on mortgage made by
him, 191.-Assignees take subject to all equities of bankrupt, 193, n.-Re-
newed terms enure to mortgagee, 195.-Of renewals in Ireland, 196.-Mort-
gagee obliged to repair, ib.-Mortgage of advowson, 197.-Simoniacal pre-
sentation, 197, n.-Nominee of mortgagee in by wrong, but his title good, 198.
-Instead of foreclosing, mortgagee should pray sale of advowson, 199.-
Devise for payment of debts, 200.-Simple contract debts carry interest, when,
200. 202.-Cancellation of debt, 202, 203.-Mortgagee not guilty of mainte-
nance in defending title, 203-should be party to suits concerning, 203, n.-
but must deliver deeds to prior incumbrancer, of whom he has notice, 204.-
Mortgagee not compellable to surrender old lease for lives, ib.-may pursue all
his remedies at once, ib.- no right to shew title deeds, 213, n.-Solicitor, though
he has lien on, cannot pledge deeds, 203, n.-Infant mortgagees enabled and
compellable to convey by order of court, under statute of Anne, 205, & n.-
may convey by fine or recovery, 206, 207.-Order unnecessary, if infant consents,
208, n.-Mode of procuring order, 206, n.-Lunatic mortgagees, 209.-Mort-
gagee a purchaser pro tanto, 211.-Settlement after marriage, void against
mortgage, 211, n.-Collaterals in marriage settlement, volunteers, 212, n.-
Mortgagee cannot bar mortgagor by fine and non-claim, or recovery, 212.-
Mortgage not an estoppel, 212, & n.-Mortgagee may gain parish settlement,
212-and after seven years in possession, may vote at elections and sit in
parliament, 213.-Charge of debts generally, exonerates purchaser, 214.
OF THE OBLIGATION OF A MORTGAGOR TO SEE TO THE APPLICATION
OF HIS PURCHASE MONEY.
Mortgagor, when liable to see money applied, 214.-Power to executor to sell
for payment of debts, 215.-Heir entitled after debts paid, 216.-First trust
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