731 



MORTGAGE. 



MORTMAIN. 



782 



the rents and profits ; and it secures to him his rights for twenty 

 years after the last payment of principal or interest by the mortgagor. 

 By the 3 & 4 Wm. IV., c. 27, when a mortgagee has got possession of 

 the land or receipt of the profits, the mortgagor, or the person claiming 

 through him, can only bring a suit to redeem the lauds within twenty 

 years next after the commencement of such possession or receipt, or 

 within twenty years from the time when the mortgagee or the person 

 claiming through him last acknowledged in writing to the mortgagor, 

 or some person claiming his estate, or to the agent of such mortgagor 

 or person, his title of mortgagor or right to redemption. The mort- 

 gagor, or the person claiming under him, may therefore, at any time 

 within the limits above-named, tender to the mortgagee his principal 

 money and interest, and claim a reconveyance of the lands ; and if the 

 mortgagee will not accept the tender and reconvey, the mortgagor may 

 compel him by filing a bill in equity for the redemption of his lands. 



A mortgagee can transfer his mortgage to another. The transfer or 

 assignment as it is generally called, consists of two parts expressed in 

 one deed, the transfer of the debt, and the conveyance of the land, 

 which is the security for the debt. If the mortgagor is not a party to 

 the assignment, the assignee takes the mortgage exactly on the terms 

 on which the assignor held it at the time of the assignment. If there- 

 fore the mortgagor should happen to have paid the whole or any part 

 of the debt, the assignee, in coming to a settlement with him, must 

 submit to allow such payment in diminution of the original debt which 

 the assignor affected to assign to him. 



Though the mortgagee, after the mortgagor's default in payment of 

 the principal money and interest, has the absolute legal estate, he is 

 still considered by courts of equity only to hold it as a security for his 

 debt. The legal estate in the land will descend to the mortgagee's 

 heir, or will pass by his will, if duly executed ; but the heir or devisee 

 takes only the legal estate in the land, and the money or debt (as a 

 general rule) belongs to the mortgagee's administrator or executor. 



If the principal money and interest are not paid at the time agreed 

 on, the mortgagee may file a bill of foreclosure against the mortgagor. 

 By such bill the mortgagee calls on the mortgagor to redeem his 

 estate forthwith, by payment of the principal money, interest, and 

 costs ; and if the mortgagor does not do this within the time named by 

 the decree of the court (which is generally within six months after 

 report has been made of what is due for principal, interest, and costs), 

 he is for ever foreclosed and barred of his equity of redemption, and the 

 mortgagee becomes the owner of the land in equity, as he was before 

 at law. If the money is paid at the time named, the mortgagee must 

 reconvey the land, and deliver up to the mortgagor all the deeds and 

 writings in his possession relating to the land. 



If both the mortgagor and mortgagee are living at the time when the 

 hinds are redeemed, and nothing has been done by either party to 

 assign or transfer his interest to any other person, the transaction is a 

 very wimple one : the mortgagor pays his debt and interest, and the 

 mortgagee reconveys the lands. The settlement of accounts between the 

 mortgagor and mortgagee may be rendered more difficult by the cir- 

 cumstance of the mortgagee having received the rents, for which the 

 decree for redemption provides that he must account. It may however 

 happen that the mortgagor or mortgagee is dead, or that they have 

 severally disposed of their interests in the lands, or all these events may 

 have happened, which renders the settlement much more complicated. 



To take the case of mortgagor and mortgagee being dead. As every 

 mortgage transaction implies a debt from the mortgagor to the mort- 

 gagee, which he is bound to pay, even if there are no covenants for 

 payment in the mortgage-deed, it followed that, according to the general 

 rule of law, his personal estate was in the first instance liable to pay the 

 mortgage debt, unless he had by his will made a different provision for 

 payment of it. Thus the heir or devisee of the equity of redemption 

 might be entitled to call on the administrator or executor to pay the 

 mortgage debt. If however the lands in question were not mortgaged 

 by the intestate or devisor, but the equity of redemption descended or 

 was devised to him from or by the mortgagor, or if he purchased the 

 equity of redemption, his personal estate was not liable to pay the 

 mortgage debt ; but the person who derived his title to the land from 

 such intestate, devisor, or purchaser, took it subject to the burden of 

 the mortgage debt, and this is still the law as to lands devolving under 

 wills dated previously to the 1st of January, 1855. For other cases 

 the law is now altered by 17 & 18 Viet., c. 113, so that land in mort- 

 gage passes to the heir or devisee cum onere. 



When a mortgage deed contains a power of sale, which is exercised 

 in the lifetime of the mortgagor, the surplus money is personal estate ; 

 but if the sale is effected after the mortgagor's death, the money 

 belongs to his heir or the devisee of the lands. 



The person entitled to receive the debt is the administrator or 

 executor of the mortgagee ; for, as already observed, the land is only 

 considered as a security for the debt, which the mortgagor has bound 

 himself, his heirs, executors, and administrators, to pay to the 

 mortgagee, his executors, administrators, and assigns. Thus, whether 

 the mortgagee dies without having or after having assigned his 

 mortgage, the money is a debt due to the personal representative of 

 the mortgagee, or to his assignee, or to the personal representative of 

 thn assignee, if the assignee is dead. When the debt is received by 

 Mil 1 person entitled to receive it, the person who has the legal owner- 

 ship of the laud, whether he be heir or devisee, is bound to convey it 



to the person who, on the payment of the debt, becomes entitled to 

 the legal estate. In such case, on payment of the debt to the person 

 entitled to receive it, the heir or devisee is by a fiction converted into 

 a trustee for the person entitled to the land. The mortgagee may, 

 however, by express declaration, convert the mortgage debt into land 

 (according to the technical expression), and make it pass as land by his 

 will, in which case the devisee will have the same title to the money as 

 he would have had to the land if it had been absolutely the property of 

 the mortgagee. 



When the mortgagor has mortgaged his equity of redemption (which 

 he may do as often as he pleases), every new mortgagee has his claim 

 on the land as a security for his debt, according to the order in which 

 his mortgage stands. This is the general rule ; but it is subject to 

 various exceptions, which depend on particular circumstances. Thus a 

 mortgagee of the equity of redemption will be postponed, as to his 

 security, to a subsequent mortgagee who has advanced his money 

 without notice of the prior mortgage, if such subsequent mortgagee 

 should be able to obtain the legal estate. 



If a second mortgagee obtains the title-deeds of the estate, this will 

 not give him a preference over a prior legal mortgagee, unless the prior 

 mortgagee has parted with or failed to get possession of the title-deeds 

 for fraudulent purposes, or through gross negligence. But though the 

 second mortgagee has no priority, when there is neither fraud nor 

 negligence, he will not be compelled to give up the title-deeds to the 

 first mortgagee, unless the first mortgagee pays him his debt and 

 interest. 



A legal mortgage is effected by an instrument which transfers the 

 legal estate. When a mortgagor makes a second mortgage, and uses 

 the form of a legal conveyance, this also is called a legal mortgage, 

 though there is no transfer of any legal estate, for the legal estate is 

 already conveyed to another person. This kind of mortgage may. be 

 called a mortgage of an equity of redemption, by way of distinguishing 

 it from the equitable mortgage next mentioned. An agreement in 

 writing to transfer an estate as a security for the repayment of a sum 

 of money, is called an equitable mortgage, because it gives the intended 

 mortgagee a right to have a legal mortgage, and in a court of equity 

 gives him in fact all the rights of a legal mortgagee. A deposit of the 

 title-deeds of an estate, or of the copy of court-roll, as a security for a 

 debt contracted at the time of the deposit, or previously to the 

 deposit, constitutes an equitable mortgage. An equitable mortgagee, 

 by deposit of title-deeds, has a preference over a subsequent purchaser 

 or mortgagee who obtains the legal estate with notice of the equitable 

 mortgage. 



It the mortgagor is not seised in fee, but has only a limited interest 

 in land, as a lease for years, the mortgagor by taking an assignment of 

 the lease, becomes liable for the rent, and to the covenants contained 

 in the lease, though he has never taken possession of the premises 

 included in it. The same rule was for a time held to apply to an 

 equitable mortgagee by deposit of title-deeds [LEASE] ; but in a recent 

 case it was decided that the equitable mortgagee is not liable to 

 such covenants (Moores v. Choat, 8 Sim. 508), and so the matter stands 

 at present. See also Moore v. Greg, 2 Phill., 724. 



The preceding remarks apply to mortgages of land only, in which 

 there are many peculiarities which arise from the condition of legal 

 ownership of land in this country. But other kinds of property may 

 be mortgaged, such as chattels personal, a life-interest in a sum of 

 money, or a policy of insurance, or a ship, or shares in a ship. The 

 subject of pawning or pledging of goods is treated under PLEDGE, and 

 also the rules of the Roman law as to Hypotheca and Pignus. The 

 equitable lien on land, which is classed among mortgages by some 

 writers, is briefly noticed under LIEN ; and mortgages of ships under 

 SHIP. 



No attempt has been made to lay down all or the greater part of the 

 rules applicable to mortgages. The explanation of these rules would fill 

 a large volume. The general principles of all mortgages are however 

 here laid down, and the reader must consult professional books for 

 particular cases. 



MORTIFICATION (in Medicine) is the death of. any tissue. It may 

 occur from a variety of causes, as intense inflammation [INFLAMMA- 

 TION], or from anything which is followed by a cessation of the circu- 

 lation of blood through a part, as diseases of the arteries and veins, the 

 pressure of tumours and foreign bodies, excessive debility, &c., or from 

 any sudden and 'Violent chemical or mechanical agent, as strong acids 

 or other corrosive substances, excessive heat or cold, violent blows, &c. 

 The process of reparation consists in the separation of the living tissues 

 from the dead, the removal of the latter by absorption or by being 

 thrown off externally, and the granulation and cicatrisation of the 

 exposed surface of the former. 



MORTMAIN. By the 9 Hen. III. c. 36 (Magna Charta), it was 

 declared that it should not be lawful for the future for any person to 

 give his land to a religious house, so as to take it back again and hold 

 it of the house ; and any such gift to a religious house was declared to 

 be void, and the land was forfeited to the lord of the fee. The reason 

 of this provision is obvious, if we consider the nature of the feudal 

 tenure ; and indeed it is distinctly expressed in the preamble of the 

 statute of the 7 Edward I., sometimes entitled 'Do lleligiosis,' as 

 follows : " Whereas of late it was provided that religious men should 

 not enter into the fees of any without the licence and consent of the 



