Construction Of A Mortgage In Law

For every 100/. and also for any fractional part of 100/. of the amount transferred, assigned or disponed






And also where any further money is added to the money already secured ..

The same duty as a principal security for such further money.

(4) Reconveyance, release, discharge, surrender, re-surrender, warrant to vacate, or renunciation of any such security as aforesaid, or of the benefit thereof, or of the money thereby secured :

For every 100l. and also for any fractional part of 100/. of the total amount or value of the money at any time secured




(b) See as to this. Doe d. Roylance v. Lightfoot, s Mee. & W. 658; Doe .1. Parsley v. Day, 2 Q. B. 147; Rogers v. Grazebrook, 8 Q. B. 895 (c) Sect. 332.

Origin of the term mortgage.

The legal estate belongs to the mortgagee.

The mortgagor cannot even make a valid lease.

When the day of payment is passed, the

(d) Glanville, lib. 10, cap. 6; Coote on Mortgages, ch. 2.

(e) Interest was first allowed by law by stat. 37 Hen. VIII. c. 9, by which also interest above ten per cent, was forbidden.

(f) See Doe d. Barney v. Adams, 2 Cro. & Jerv. 235;

Wliitton v. Peacock, 2 Bing. N. C. 411; Green v. James, 6 Mee. & Wels. 656; Doe d. Lord Downe v. Thompson, 9 Q. B. 1037; Cuth-iertson v. Irving, 4 H. & N. 724; 6 H. & N. 135; Saunders v. Merryweather, 3 H. & Colt. 902.

The relative rights of mortgagor and mortgagee appear to have long remained on the footing of the strict construction of their bargain, adopted by the Courts of law. It was not till the reign of James I. that the Court of Chancery took upon itself to interfere between the parties (j). But at length, having determined to interpose, it went so far as boldly to lay down as one of its rules, that no agreement of the parties, for the exclusion of its interference, should have any effect (k). This rule, no less benevolent than bold, is a striking instance of that determination to enforce fair dealing between man and man, which has raised the Court of Chancery, notwithstanding the many defects mortgagee may eject the mortgagor without notice.

Stat. 7 Geo. II. c. 20.

Interposition of the Court of Chaucery.

(g) Keecli v. Hall, Doug. 21; Doe d. Roby v. Maisey, 8 Bar. & Cres. 767; Doe d. Fisher v. Giles, 5 Bing. 421; Coote on Mortgages, book '3, ch. 3.

(h) Doe d. Hurst v. Clifton, 4

Adol. & Ell. 814.

(0 Stats. 7 Geo. II. c. 20, s. 1; 15 & 16 Vict. c. 76, ss. 219, 220.

(,j) Coote on Mortgages, book 1, ch. 3.

(k) 2 Cha. Ga. 148; 7 Vca. 273.

ill its system of administration, to its present power and dignity. The Court of Chancery accordingly holds, that after the day fixed for the payment of the money has passed, the mortgagor has still a right to redeem his estate, on payment to the mortgagee of all principal, interest and costs due upon the mortgage to the time of actual payment. This right is called the mortgagor's equity of redemption; and no agreement with the creditor, expressed in any terms, however stringent, can deprive the debtor of his equitable right, on payment within a reasonable time. If, therefore, after the day fixed in the deed for payment, the mortgagee should, as he still may, eject the mortgagor by an action of ejectment in a Court of law, the Court of Chancery will nevertheless compel him to keep a strict account of the rents and profits; and, when he has received so much as will suffice to repay him the principal money lent, together with interest and costs, he will be compelled to re-convey the estate to his former debtor. In equity the mortgagee is properly considered as having no right to the estate, further than is necessary to secure to himself the due repayment of the money he has advanced, together with interest for the loan; the equity of redemption, which belongs to the mortgagor, renders the interest of the mortgagee merely of a personal, nature, namely, a security for so much money. In a Court of law, the mortgagee is absolutely entitled; and the estate mortgaged may be devised by his will (l), or, if he should die intestate, will descend to his heir at law; but in equity he has a security only for the payment of money, the right to which will, in common with his other personal estate, devolve on his executors or administrators, for whom his devisee or heir will be a trustee; and, when they are paid, such devisee or heir will be obliged by the Court of Chancery, without receiving a sixpence for himself, to re-convey the estate to the mortgagor.

Equity of redemption.

(l) See 1 Jarm. Wills, 63S, 1st ed.; 591, 2nd ed.; 654, 3rd ed.

Indulgent, however, as the Court of Chancery has shown itself to the debtor, it will not allow him for ever to deprive the mortgagee, his creditor, of the money which is his due; and if the mortgagor will not repay him within a reasonable time, equity will allow the mortgagee for ever to retain the estate to which he is already entitled at law. For this purpose it will be necessary for the mortgagee to file a bill of foreclosure against the mortgagor, praying that an account may be taken of the principal and interest due to him, and that the mortgagor may be directed to pay the same, with costs, by a short day, to be appointed by the Court, and that in default thereof he may be foreclosed his equity of redemption (m). A day is then fixed by the Court for payment; which day, however, may, on the application of the mortgagor, good reason being shown (n), be postponed for a time. Or, if the mortgagor should be ready to make repayment, before the cause is brought to a hearing, he may do so at any time previously, on making proper application to the Court, admitting the title of the mortgagee to the money and interest (o). If, however, on the day ultimately fixed by the Court, the money should not be forthcoming, the debtor will then be absolutely deprived of all right to any further assistance from the Court; in other words, his equity of redemption will be foreclosed, and the mortgagee will be allowed to keep, without further hindrance, the estate which was conveyed to him when the mortgage was first made. By the act to amend the practice and course of proceeding in the Court of Chancery, the Court is empowered, in any suit for foreclosure, to direct a sale of the property at the request of either party instead of a foreclosure (p). And the equitable jurisdiction of the Court of Chancery is now extended to the County Courts with respect to all sums not exceeding five hundred pounds (q).