Sec. 21. Mortgage regarded as security merely, p. 36.

Sec. 22. Equitable right to redeem and the correlative right to foreclose, p. 37.

Sec. 23. A mortgage cannot be made irredeemable, p. 41.

Sec. 24. Once a mortgage always a mortgage, p. 42.

Sec. 25. Stipulation for a collateral advantage, p. 43.

Sec. 26. Clogging the equity of redemption, p. 45.

Sec. 27. Disguised forms of mortgage, p. 51.

Sec. 28. Nature of the equity of redemption, p. 53.

Sec. 29. How the equity of redemption may be barred or extinguished, p. 55.

Sec. 21. Mortgage regarded as security merely

Although the courts of law construed a mortgage strictly as conferring upon the mortgagee a conditional estate in the land (a) they did not entirely lose sight of the fact that the substantial purpose of the transaction was merely to give a security to the mortgagee.

Littleton points out that if the mortgagor dies before the day fixed for payment, the duty to pay the debt may be discharged by his executors, and if the mortgagee dies before the day the money should be paid to his executors, and not to his heir, unless the heirs are named (b). Till the time fixed for redemption has expired the mortgagee's estate is clearly regarded as simply a security for money lent, which money can be paid by and should be received by the executors and not by the heir. The idea bore much fruit when, after the legal time for redemption had expired, the Court of Chancery recognized an equity of redemption (c).

(a) See chapter 2, Mortgage at Common Law, Sec. 12.

(b) Litt. Ten. ss. 337, 339; Co. Litt. 208a, 209b. If both heirs and executors were named disjunctively and the mortgagor paid the money precisely on the day, he might elect to pay it to the heir or executor as he pleased. Thornborough v. Baker,. 1677, 3 Swanst. 628, at p. 629, 18 R.C. 231, at p. 232.

In Thornbrough v. Baker (d) in Chancery in 1677 it was held that if the mortgagor's estate had been forfeited at law by reason of his failure to pay on the day named in the mortgage, and the mortgagee was dead, the money was payable to the executor, not to the heir, even though the heirs were named in the contract. In such a case the contractual right of the mortgagor to pay the heir instead of the executor was forfeited. The mortgagee's right to the land was in essence merely a right to a security for money and the money when paid was part of his personal estate. Consequently the heir was bound to reconvey on payment to the executor. It has long been settled that the mortgage security is personal estate (e).