7T 



MORTGAGE. 



of filling MX! projecting carcasses U fully described : and it appears that 

 in the me year shells were thrown from ordnance at the siege of 

 Wachtondonk. [Bone.] Red-hot shot were thrown from mortars at 

 the siege of Bremen, by the Swedes, in 1665. 



The first artillerisU were somewhat oapricioiu in the formation of 

 their great ordnance; and among the various kinds which they devised 

 may be mentioned what were called Partridge mortar*. These had 

 ..ne great central bore for the reception of the shell ; and about it, mi 

 the face of the muzzle, were sunk thirteen chambers, each of which 

 contained a grenade. The shell and grenades were discharged at the 

 same time, and in the air they must hare appeared like a flight of 

 birds ; from which circumstance, no doubt, the name of mortar was 

 taken. 



The Dutch engineer Coehom invented a small mortar for throwing 

 grenades into the covered-ways of places. They were capable of being 

 carried abont and served by one man; consequently they could be 

 readily brought up to a convenient spot, and rapidly fired when it was 

 intended to drive the defenders from behind the parapets. In tin- 

 French service Piemen (small mortars loaded with stones) are still 

 employed for the same purpose. 



In the year 1771 an experiment was tried at Gibraltar on the dis- 

 charge of stones from an excavation in the rock. The figure of the 

 excavation is a parabolic conoid, whose axis is 4 feet long, and whose 

 diameter at the muzzle is 3 feet. It waa charged with 27 Ibs. of 

 powder and 1470 stones; and, on the explosion taking place, nearly 

 one-fourth of the stones were projected to the distance of 100 yards. 

 There are several rock-mortars, as they are called, at Malta, and such 

 may on many occasions be very useful both in the defence and in the 

 attack of a fortified place. 



MORTGAGE. A general notion of a mortgage may be collected 

 from the following passage in Littleton ( 332), who treat* of mort- 

 gages as then in use, under the general head of estates upon 

 condition. 



" If a fcoffmcnt be made upon such condition, that if the feoffer pay 

 to the feoffee, at a certain day, 401. of money, that then the feoffor may 

 re-enter, Ac., -in this case the feoffee is called tenant in morgage, 

 which is as much to say, in French, as murtyayt ; and in Latin, mor- 

 txum radium. And it seemeth that the cause why it is called mort- 

 gage is, for that it is doubtful whether the feoffor wUl pay,- at the day 

 limited, such sum or not : and if he doth not pay, then the land, 

 which is put in pledge upon condition for the payment of the money, 

 is taken from him for ever, and so dead to him, upon condition, 

 Ac. And if he doth pay the money, then the pledge is dead as to the 

 tenant, Ac." 



The money thus agreed to be paid by the feoffor must be supposed 

 to be money borrowed from the feoffee, or the amount of a debt due 

 from the feoffor to the feoffee, though Littleton does not expressly say 

 so. According to the terms of this contract, if the feoffor or the 

 feoffor 's heir did not pay the money at the time appointed, the land 

 *tfnm* the absolute property of the feoffee. 



The mortuum vadium of Glanville (book x.) is evidently a different 

 thing from the mortuum vadium of Littleton, and (ilanville's explana- 

 tion of the term seems more applicable to his mortuum. radium, than 

 Littleton's is to the mortgage which he describes. " When an immov- 

 able thing," says Glanville, " is put into pledge, and seisin of it lus 

 been (delivered to the creditor for a definite term, it has eith. 

 agreed between the creditor and debtor that the proceeds and rents 

 nail in the meantime reduce the debt, or that they shall in no 

 measure be so applied. The former agreement is just and binding ; the 

 other unjust and dishonest, and is that called a mortgage, but this is 

 not prohibited by the king's court, although it considers such a pledge 

 as a species of usury." (lieamcs 1 Trant/.) 



Littleton describes the old and strict law of mortgage ; but the 

 courU of equity gradually introduced such modifications as to con- 

 vert a mortgage from its ancient simplicity into a very artificial and 

 complicated arrangement A mortgage is a contract, and therefore 

 re-Hiiro* two person? at least, one of whom borrows and the; other lends 

 money. The borrower is the owner of land which he conveys or trans- 

 fers as a security to the lender of the money : the borrower is called 

 the mortgagor, and the lender is called the mortgagee. The whole 

 transaction U properly termed a mortgage ; but the name is sometimes 

 applied simply to the debt. The nature of this contract, as it is now 

 understood, will best appear from a brief enumeration of the essential 

 terms of the instrument called a mortgage deed. For the sake of 

 implicity, the case of a mortgage in fee may be taken as the example ; 

 awl the remarks which follow must be considered as applicable to that 

 description of mortgage. 



The instrument of mortgage is a deed indented. It commences by 

 reciting that the mortgagor is the owner in fee simple of the lands 

 which it is intended by the deed to convey to the mortgagee, and that 

 the mortgagee has agreed to lend him a certain sum of money on the 

 ecurity of the land*. It is then declared that, in pursuance of the said 

 agreement, the mortgagee has paid to the mortgagor the sum of money 

 which he (the mortgages) has agreed to lend. The mortg;. 

 veys to the mortgagee and his heirs the lands in question, with a 

 condition that if the mortgagor, hi* heirs, executors, administrators, or 

 assigns, shall pay to *e mortgagee, his executors, Ac., the sum of 

 money borrowed, with interest for the same at the rate in the instru- 



ment mentioned, upon a future day, which is sunn d in the dead 

 (generally a year from the date of the mortgage deed), without any 

 deduction or abatement whatsoever, the deed shall then cease ami In- 

 void to all intents and purposes, or that the mortgagee shall reconvey 

 the premises to the mortgagor. In addition to this conveyance of tin- 

 lands, the mortgagor promises and undertakes to pay t 

 money borrowed, and interest on the same, at the rate and nt tl.. tim<- 

 ned in the instrument ; and he also covenants (as the 

 legal phrase is) that ho has full right to convey the lands in the man- 

 ner expressed in the previous part of the instrument. It is further 

 agreed that, after the mortgagor shall hare failed to pay the principal 

 sum of money, and interest, or any part thereof, as before agreed, the 

 mortgagee, his heirs, or assign*, may take possession of the lands so 

 conveyed as aforesaid, and use and enjoy them, and take the rents and 

 profits, without any hindrance or interruption from the mortgagor 

 his heirs, executors, administrators, or assigns, or any other person or 

 persons. It is also provided that until the mortgagor shall have made 

 mich default in payment as aforesaid, he, his heirs, or assigns, shall 

 hold and enjoy and receive the renta and profits of the lands without 

 any interruption or hindrance from the mortgagee, his heirs, or 

 assigns. In many mortgage deeds it is also provided, that if tin- prin- 

 cipal money and interest, or any part thereof, are not |iid at tin- time 

 agreed on, the mortgagee may sell the mortgaged lands (g. 

 notice to the mortgagor of such his intention, if notice is provided for 

 by the instrument) : it is also provided that after paying out of tin- 

 proceeds of the sale, and out of any rents or profits which he may have 

 received from the lands, the costs and expenses of the sale, ;r 

 other expenses incurred in the execution of the trust for sale, and 

 retaining what is due to him for priuci|>al and interest, the mortgagee 

 must pay the surplus, if any, to the mortgagor, his heirs, executors, 

 administrators, or assigns, or as he or they shall direct. In deeds 

 which contain a power of sale, it is usual to insert a proviso, 

 such power of sale is not to destroy or prejudice the mortgagee's right 

 of foreclosure. 



These are the essential parts of a mortgage-deed, which is varied 

 according to the estate or interest in the lands which the mortgagor 

 conveys to the* mortgagee, and according to the special agreement of the 

 parties. By the execution of the deed, the estate of the mortgagor in 

 the lands mortgaged is conditionally transferred to the mortgagee, but 

 the mortgagor's estate is not forfeited till he makes default in payment 

 of the money borrowed and interest at the time named in the deed. 

 The money borrowed is however seldom paid at the time agreed on, 

 the consequence of which is that the mortgagor's estate is forfeited by 

 his not fulfilling the condition, and the mortgagee becomes the absolute 

 legal owner of the land, or of such estate in it as was conveyed to him. 

 He can then bring an action of ejectment against the mortgagor, if 

 the mortgagor is in possession of the land, without giving him notice ; 

 and he can do this even before default in payment, unless it is agreed 

 by the mortgage-deed that the mortgagor shall remain in possession 

 till he makes default, and a clause to this effect is commonly inserted 

 in the deed. After the mortgage is made, the mortgagor cannot make 

 a lease of the lands without the mortgagee's consent, for he has no 

 interest in the land out of which he can create a legal estate ; .-UK! if 

 any such lessee gets possession of the land, the 'mortgagee may eject 

 him. But the lessee who claims by a title prior to the mortgage is nut, 

 affected by the mortgage transaction, though, after default is made 

 and he has notice from the mortgagee, he U bound to pay to hi' 

 future rents and those which are then due. 



There has been considerable discussion as to the nattnv of tin- 

 relation of the mortgagor in possession and the mortgagee; an 

 relation has been supposed to be that of tenant and lnu.ll.>!. I. i|... 

 nature of the tenancy varying according as we contemplate it l>n 

 after default. But this seems on erroneous view of the legal 

 of ill,- contract, and the supposition of a tenancy is perfectly useless 

 for the explanation of the rights either of the mortgagor or mortgagee, 

 which are determined by the instrument of mortgage, and by the well- 

 established jurisdiction of courts of equity in matters of mortgage. 



From the time of default being made, the several interests of the' 

 mortgagor and the mortgagee in the land must be considered as chiefly 

 belonging to the jurisdiction of equity. When the mortgag. 

 default of the mortgagor, has become the absolute legal owner of 1 1n- 

 land*, the mortgagor possesses what is called the equity of redemption. 

 This equity of redemption is considered by courts of equity as an 

 estate in tho land : it may be devised by the mortgagor, and, in case of 

 his intestacy, it will descend to his heir ; it may be sold, or it n 

 mortgaged; it is subject both to dowi-r (in equity, by ;i A. 4 Win. IV., 

 c. 1 05) and curtesy ; and it may be settled like a legal estate. 



By tho statute 1 Viet, c. 28, imdr for tho purpose of explain- 

 ing the statute of limitations (3 & 4 Win. I V., c. -27), it was enacted, 

 That any person entitled to or claiming under any mortgage of land (as 

 defined by the last-mentioned act) liny make an entry 'or bring an 

 action at law or suit in equity, to recover such land, at an\ 

 within twenty years next after the last payment of any part of the 

 princi[>al money or interest secured by such mortgage, although inon- 

 than twenty years may have elapsed since the time at which the i-i^lit 

 to make such entry or bring such action or suit inequity .-li.ill li;m: 

 first accrued. This act was passed to protect the mortgagee who allows 

 the mortgagor to continue in possession of the land or in the receipt of 



