Sec. 41. Definition of equitable mortgage, p. 71.

Sec. 42. How an equitable mortgage is created, p. 72. .

Sec. 43. Mortgage of equitable interest, p. 73.

(1) Mortgage of an equity of redemption.

(2) Mortgage of other equitable interest.

Sec. 44. Mortgage by instrument not sufficient to convey the legal estate, p. 75.

(1) Defect of form.

(2) Agreement to give a mortgage.

(3) Charge on land.

Sec. 45. Mortgage by deposit of title deeds, p. 77. Sec. 46. Remedies of equitable mortgage, p. 80. Sec. 47. Floating charge, p. 82.

Sec. 41. Definition of equitable mortgage

It has already been pointed out that it is an essential feature of a legal mortgage that it should vest the legal estate in land in the mortgagee (a), and it follows that any mortgage which does not transfer the legal estate cannot be a legal mortgage. Equity not only annexed to a legal mortgage contains inevitable terms which it enforced without regard to the contract of the parties (b), but it recognized as valid charges mortgages other than legal mortgages and annexed to them the same inevitable terms.

An equitable mortgage therefore is a contract which creates in equity a charge on property but does not pass the legal estate to the mortgagee (c). Its operation is that of an executory assurance, which, as between the parties, and so far as equitable rights and remedies are concerned, is equivalent to an actual assurance, and is enforceable under the equitable jurisdiction of the court (d).

(a) See chapter 2, Mortgage at Common Law, Sec. 11.

(b) See chapter 3, Legal Mortgage in Equity, Sec. 22