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 .
While, as just stated, the courts of equity have, from a quite early period, regarded the mortgagee as having a lien or charge merely, the common law view that, by the making of the mortgage, the legal title to the land is transferred to the mortgagee, as in the case of any other conveyance on condition subsequent, is still retained in courts of law in England and in some of the states. This difference of view on the part of the courts of equity and law does not involve any conflict between the two jurisdictions, since courts of law recognize, though they do not usually enforce, the rights given to the mortgagor by courts of equity, while these latter recognize that the legal title is in the mortgagee, and assent to the enforcement by courts of law, so far as necessary for the protection of the mortgagee, of rights based on his legal title.6 This view, thus adopted in some states, that the legal title is in the mortgagee for certain purposes, may conveniently be termed the "title theory" of a mortgagee.7 In other states the view that the mortgagee has the legal title is entirely superseded, both at law and in equity, by the view which has always prevailed in equity, that he has merely a lien to secure his debt.8 In a number of states there is a statutory
32; Emanuel College v. Evans, 1 Rep. Ch. 18; Manning v. Burges, 1 Ch. Cas. 291; 1 Spence, Equitable Jurisdiction, 603; 4 Kent's Comm. 158.
4. 2 Cruise, Dig. tit. 15 c. 1, 13; 4 Kent's Comm. 181; 2 Blackst. Comm. 159.
At the present day, in this country, the decree, instead of giving the property to the mortgagee, ordinarily provides for its sale, and payment of his debt out of the proceeds, or there is a sale without decree. See post Sec.Sec. 652-654.
5. Casborne v. Scarfe, 1 Atk. 603. See 4 Kent's Comm. 160 and post Sec. 607.
6. 4 Kent's Comm. 160; 3 Pom-eroy, Eq. Jur. Sec. 1184.
7. This theory is adopted in Alabama, Arkansas, Connecticut. Illinois, Maine, Maryland, Massachusetts, Misteissippi, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and West Virginia. 1 Jones, Mortgages (5th Ed.) Sec.Sec. 17-59; 3 Pomeroy, Eq. Jur. (3d Ed.) Sec.Sec. 1186-1191. See Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Kannady v. McCarron, 18 Ark. 166; Chamberlain v. Thompson, 10 Conn. 243, 26 Am.
Dec. 390; Barrett v. Hinckley, 124 111. 32, 7 Am. St. Rep. 331, 14 N. E. 863; Blaney v. Bearce, 2 Me. 132; Jamieson v. Bruce, 6 Gill & J. (Md.) 72, 26 Am. Dec. 557; Ewer v. Hobbs, 5 Metc. (Mass.) 1; Howard v. Robinson, 5 Cush. (Mass.) 119; Buck v. Payne, 52 Miss. 271; Hobart v. Sanborn, 13 N. H. 226, 38 Am. Dec. 483; Hogan v. Utter, 175 N. C. 332, S5 S. E. 565; Tryon v. Munson, 77 Pa. St. 250; Simmons v. Brown, 7 R. I. 427; Faulkner's Adm'x v. Brockenbrough, 4 Rand. (Va.) 245. 8. This view prevails in Caliprovision confirmatory of this lien theory of a mortgage, in the shape of a declaration that the mortgage shall constitute a lien merely9 or that it shall not operate as a conveyance of the legal title.10 And the not infrequent provisions denying the mortgagee a right of possession until foreclosure11 have also been referred to as an indication of legislative intention that the mortgagee shall have merely a lien.
The fact that the lien theory of a mortgage had its inception in courts of equity does not indicate that, in states where it is accepted in courts of law as well as in those of equity, the mortgagee has an equitable lien only, in the nature of a right in personam.12 He has it seems clear, a legal lien, a right in rem.13
Even in those states which have adopted the English or title theory of a mortgage, the courts have not confornia, Colorado, Delaware. Florida, Georgia, Idaho, Indiana. Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Washington, Wisconsin, and Utah. 1 Jones, Mortgages, Sec.Sec. 17-59; 3 Pomeroy, Eq. Jur. Sec.Sec. 1186-1191. See McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655; Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Drake v. Root, 2 Colo. 685; Malsberger v. Parsons, 24 Del. 254, 100 Atl. 786; McMahon v. Russell, 17 Fla. 698; Burnside v. Terry, 45 Ga. 621; Hannah v. Ven-sel, 19 Idaho 796, 116 Pac. 105; Grable v. McCulloh, 27 Ind. 472; Chick v. Willetts, 2 Kan. 384; Taliaferro v. Gay, 78 Ky. 496; Ca-riuhers v. Humphrey, 12 Mich. 270; Adams v. Corriston, 7 Minn. 456 (Gil. 365); Rogers v. Benton, 39 Minn. 39, 12 Am. St. Rep. 613, 38 N. W. 765; Benton Land Co. v. Zeitler, 182 Mo. 251, 70 L. R. A. 94, 81 S. W. 193; Webb v. Hoselton, 4 Neb. 308, 19 Am. Rep. 638; Phyfe v. Riley, 15 Wend. (N. Y.) 248, 30 Am. Dec. 55; Hubbell v. Moulson, 53 N. Y. 225, 13 Am Rep. 519; Page v. Turk, 43 Okka. 667, 143 Pac. 1047; Breden-burg v. Landrum, 32 S. C. 215, 10 S. E. 956; Wright v. Henderson, 12 Tex. 43; Gerber v. Heath, 92 Wash. 519, 159 Pac. 691.
9. Florida Comp. Laws 1914, Sec. 2495; Georgia Code 1911, Sec. 3255.
10. Minnesota Gen. St. 1913, Sec. 8077; Nebraska Ann. St. 1911, 10855; Nevada Rev. Laws 1912, Sec. 5518; Oregon Lord's Laws, Sec. 335; Utah Laws 1907, Sec. 3517.
11. Post, Sec. 610.
12. Post, chapter 36.
13. See two excellent articles by Professor Edgar N. Durfee, 10 Mich. Law Rev. 587, 11 Id. 495.
Sistently followed it out to all its logical consequent a tendency to regard the mortgage according to its real nature as a mere security being constantly at work, even in courts of law, a tendency which has been increased and strengthened by the various statutes admitting equitable defenses in legal actions, or otherwise obscuring the line between equity and law.14 The extension of the view that a mortgage is merely a lien marks a distinct advance in legal ideas, and it is to be expected that, with the passage of time, the crude conception of an estate on condition in the mortgagee will entirely disappear.15