This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Even in jurisdictions in which the title theory of a mortgage as in England, the legal title to the land. This title, however, does not make him the owner of the land, except in so far as the exercise of the rights of an owner is necessary or desirable for the protection of his security.69 Accordingly, his interest, as being a mere chose in action, a right to subject the land to his claim, is regarded as personal property, although the property mortgaged is freehold, and, on his death intestate, it passes to his personal representatives, and not to his heirs.70 So, the mortgagee's interest before foreclosure is, as being a mere chose in action, not subject to levy under execution against him.71
52. Judd v. Flint, 4 Gray (Mass.) 557; Carradine v. Wilson, 61 Miss. 573; Feldman v. Gamble, 26 N. J. Eq. 494; Morris v. Wray, 16 Ohio, 469; Corbett v. Woodward, 5 Sawy. 403; Sheeny v. Sheehy, L. R. 1 Ir. (1901), 239.
53. McQuade v. Rosecrans, 36 Ohio St. 442; Brigham v. Potter, 14 Gray (Mass.) 522; Bick v. Seal, 45 Mo. App. 475.
54. Ante, Sec. 605, notes 96, 98.
55. Pollock, Contracts (Willis-ton's Ed.) 483 note; 1 Daniel, Neg. Inst. (5th Ed.) Sec. 204.
56. Shaw v. Carpenter, 54 Vt. 155, is to this effect.
57. Small v. Williams, 87 Ga. 681, 13 S. E. 589; Pearce v. Wilson, III Pa. St. 14, 56 Am. Rep. 243, 2 Atl. 99.
58.. Pollock, Contracts (Willisis adopted, the mortgagor is for most purposes regarded as the substantial owner of the land.59 In jurisdictions in which the lien theory is adopted, there can obviously be no question that the mortgagor is the owner.
The expression "equity of redemption" is almost invariably applied to the interest of the mortgagor in the mortgaged land, even in states in which it is recognized that the mortgagee has a lien merely. In view of the fact that the mortgagor has, in all the states, much more than a mere right to go into equity to redeem, that he is, in effect, the substantial owner of the property, the expression referred to is evidently far from appropriate for the purpose of describing his interest. Even at common law, the mortgagor had a right of re-entry provided he paid the debt at the time named, and consequently it could never have been truly said that the mortgagor's only right is that, recognized by equity, to extinguish the mortgage by payment even after default, the right, that is, to redeem. It is only after default, and only in states in which the title theory of a mortgage is fully recognized, that the expression "equity of redemption" correctly describes the mortgagor's interest in the land. Its use to describe the mortgagor's interest even before default is, however, so thoroughly established, that it is not likely to be discontinued, even by ton's Ed.) 483; Hammon, Contracts, 467.
59. Casborne v. Scarfe, 1 Atk. 603; Cotton v. Carlisle, 85 Ala. 175, 7 Am. St. Rep. 29, 4 So. 670; McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; City of Chicago v. Sullivan Machinery Co., 269 III. -58, 109 N. E. 696; White v. Rittenmeyer, 30 Iowa, 268; Wilkins v. French, 20 Me. III; Annapolis & E R. R. Co. v. Gantt, 39 Md. 115; Willington v. Gale, 7 Mass. 138; White v. Whitney, 3 Metc. (Mass.) 81; Trustees of Donations v. Streeter, 64 N. H. 106; Den d. Dimon v. Dimon, 10 N. J. L. 156; Hitchcock v. Harrington, 6 Johns. (N. Y.) 590, 5 Am. Dec. 229.
The courts which go furthest in repudiating the ideas on which the expression is based.
The mortgagor may convey or devise the land, subject to the rights of the mortgagee,60 and he may dispose of a less interest than his own by way of lease.61 Upon the death intestate of the mortgagor or of the mortgagor's transferee, his estate in the land passes to his heirs or otherwise, in the same way as if there were no mortgage,62 and the widow is entitled to dower, and the husband to curtesy.63-64 The mortgagor, or his transferee, may make a second mortgage of the property, or, in fact, any number of mortgages in succession, each mortgagee taking subject to any prior mortgage of which he has notice. The owner of the property, whether the original mortgagor or his transferee, can obviously not transfer the property free of the mortgage, except to one not affected with notice thereof.65 So he cannot, by a dedication of the property for a public use, affect the rights of the mortgage creditor.66 Nor can he create67 or abandon68 a private easement, so as to affect the mortgage lien.