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 .
Any interests in land which may be the subject of sale, grant, or assignment, may be mortgaged.33 Accordingly there may be a mortgage of a rent,34 an estate in remainder or reversion,15 an estate tail,36 an estate for life,37 including a widow's dower estate,38 and an estate for years.39 An heir or devise may mortgage his in31. Biggs v. Hoddinott  2 Ch. 307; Santley v. Wilde [18991 2 Ch. 474; Kreglinger v. New Patagonia, Meat and Cold Storage Co. Limited, App. Cas. (1914) 25. See Noakes v. Rice, (1902) App. Cas. 24, and 21 Harv. Law Rev. 595, at p. 459, Article by Bruce Wy-rnan Esq.
32. Gleason's Adm'x v. Burke, 20 N. J. Eq. 300. See also, Uhlfel-dar v. Carter, 64 Ala. 527.
33. 2 Story, Equity Jur. Sec. 1027, 4 Kent's Comm. 144; Wright v. Shumway, 1 Biss. (U. S.) 23, ?0 Fed. Cas. No. 18093; Curtis v. Root, 20 111. 518; Miller v. Tipton, 6 Blackf. (Ind.) 238; Dorsey v. Hall, 7 Neb. 460; Neligh v. Mich-enor, 11 N. J. Eq. 539; Mortenson v. Morse, 153 Wis. 389, 141 N. W. 273.
34. 4 Kent's Comm. 144; Van Rensselaer v. Dennison, 35 N. Y. 393.
35. In re John & Cherry Streets, 19 Wend. (N. Y.) 659; Curtis v. Root, 20 111. 518; Flanders v. Greely, 64 N. H. 357, 10 Atl. 686.
36. Hosmer v. Carter, 68 111. 98.
37. Penny v. Weems, 139 Ala. 270, 35 So. 883; Lehndorf v. Cope, 122 111. 317, 13 N. E. 505; Lan-fair v. Lanfair, 18 Pick. (Mass.) 304.
38. Mutual Life Ins. Co. of New York v. Shipman, 119 N. Y. 324, 24 N. E. 177.
39. 4 Kent's Comm. 144; McLeod v. Barnum, 131 Cal. 605, 63 Pac. 924; Rogers v. Heron, 92 111. 583; French v. Prescott, 61 N. H. 27; Hagar v. Brainerd, 44 Vt. 294; 1 Tiffany, Landlord & Ten., pp. 976 977. But in Pennsylvania it has been said that a leasehold estate can be mortgaged only by authority of statute. Stock v. German Catholic Press Co., 230 Pa. 127, 79 Atl. 414.
Terest in the estate of the deceased, subject to the payment of the latter's debts.40
A mortgage may be made of improvements on land apart from the land itself,41 and growing crops may be mortgaged by the owner of the land.42
Equitable interests, as well as legal, may be mortgaged.43 A quite usual instance of such a mortgage occurs in the case of a mortgage by a vendee of land of his interest under the contract of sale.44 In such a case the mortgage covers the equitable right of the vendee to demand a conveyance of the land in accordance with the contract, upon payment of the stipulated consideration.45
Future acquisitions. A mere possibility of acquiring property is not the subject of mortgage, as it is not the subject of grant, and consequently one cannot, at law, mortgage interests in land to be acquired by him in the future.46 In equity, however, a
40. Flanders v. Greely, 64 N. H. 357, 10 Atl. 686; Drake v. Paige, 127 N. Y. 562, 28 N. E. 407; Horst v. Dague. 34 Ohio St. 371.
41. Mitchell v. Black, 64 Me. 48; Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899; Gooding v. Riley,' 50 N. H. 400; Fletcher v. Kelly, 88 Iowa, 475, 21 L. R. A. 347, 55 N. W. 474.
42. Briggs v. United States, 143 U. S. 346, 36 L. Ed. 10; Butt v. Ellett, 19 Wall. (U. S.) 544, 22 L. Ed. 183; Luce v. Moorehead, 73 Iowa, 498, 5 Am. St. Rep. 695, 35 N. W. 598; Cotten v. Willoughby, 83 N. C. 75 35 Am. Rep. 564; Kimball v. Sattley, 55 Vt. 285, 45 Am. Rep. 614.
43. Christian v. American Freehold Land Mortgage Co., 92 Ala. 130, 9 So. 219; Morgan v. Field, 35 Kan. 162, 10 Pac. 448; Toledo,
D. & B. R. Co. v. Hamilton, 134 U. S. 296, 33 L. Ed. 905.
44. Davis v. Milligan, 88 Ala. 523, 6 So. 908; Holbrook v. Bet-ton, 5 Fla. 99; Baker v. Bishop Hill Colony, 45 111. 264; Laughlin v. Braley, 25 Kan. 147; Bank of Louisville v. Garner, 87 Ky. 6, 7 S. W. 170; McPherson v. Hay-ward, 81 Me. 329, 17 Atl. 164; Bal-en v. Mercier, 75 Mich. 42, 42 N. W. 666; Arlington Mill & Elevator Co. v. Yates, 57 Neb. 286, 77 N. W. 677; Sinclair v. Armitage, 12 N. J. Eq. 174; Attorney General v. Purmort, 5 Paige (N. Y.) 620; Simonson v. Wenzel, 27 N. D. 283, 147 N. W. 804; Scott v. Farnam, 55 Wash. 336, 104 Pac. 639; Bull v. Shepard, 7 Wis. 449.
45. See editorial note, 17 Columbia Law Rev. 323.
46. 4 Kent Comm. 144; 2 Story, Eq. Jur. Sec. 121; Purcell's Adm'r mortgage which in terms covers things thereafter to be acquired creates a lien or charge on such things, upon their acquisition by the mortgagor, this being an application of a general equitable principle that if one, by contract, undertakes to create a lien or charge, the lien or charge will be regarded as actually existing, upon the acquisition by such person of the thing sought to be charged.47 This principle has been frequently applied in the case of railroad mortgages in terms including property thereafter to be acquired by the railroad company.48
To the rule prohibiting such mortgages at law there are a few apparent exceptions, which are, however, explained by the application of other principles not inconsistent therewith. A thing which is added to another thing by way of accession, natural or artificial, so as to become a part thereof in view of the law, is subject to a previous mortgage upon the thing to which it is added. This occurs when a house is built upon v. Mather, 35 Ala. 570, 76 Am. Dec. 307; Emerson v. European, & N. A. Ry. Co., 67 Me. 387, 24 Am. Rep. 39: Jones v. Richardson, 10 Mete. (Mass.) 481; Looker v. Peckwell, 38 N. J. L. 253; Knickerbocker Trust Co. v. Carteret Steel Co., 79 N. J. Eq. 501, 82 Atl. 146;Bay-ler v. Com., 40 Pa. St 37; Minnesota Loan & Trust Co., v. Peteler Car Co., 132 Minn. 277, 156 N. W. 255; Sillers v. Lester, 48 Miss. 513; Daly v. New York & G. L. R. Co., 55 N. J. Eq. 595, 38 At. 202; Kribbs V. Alford, 120 N. Y. 519, 24 N. E. 811; Hickscn Lumber Co. v. Gay Lumber Co., 150 N. C. 282, 21 L. R. A. (N. S.) 843, 63 S. E. 1045.
47. Holroyd v. Marshall, 10 H. L. Cas. 191; Pennock v. Coe, 23 How. (U. S.) 117, 16 L. Ed. 436; Mitchell v. Winslow, 2 Story, 630,
Fed. Cas. No. 9,673; Brett v. Carter, 2 Lowell. 458, Fed. Cas. No. 1844; Apperson v. Moore, 30 Ark. 56; Borden v. Croak, 131 111. 68, 19 Am. St. Rep. 23, 22 N. E. 793; Brady v. Johnson, 75 Md. 445, 20 R. A. 737, 26 Atl. 49. This is an example of an equitable lien. See post Sec. 659 et seq. and article by Professor Samuel Williston in 19 Harv. Law Rev. 557.
48. Central Trust Co. v. Knee-land, 138 U. S. 414, 34 L. Ed. 1014; Phillips v. Winslow, 18 B. Mon. (Ky.) 484; Pierce v. Emery, 32 N. H. 484; Platt v. New York & S. B. Ry. Co, 9 N. Y. App. Div. 87, 41 N Y. Supp. 42, 13 N. Y. 670, 48 N. E. 1106; Philadelphia. W. & B. R. Co., v. Woelpper, 64 Pa. St. 366; Pierce v. Milwaukee & St. P. R. Co., 24 Wis. 551.
3 R. P. - 7 mortgaged land, or articles or machinery are attached to a mortgaged building, so as to become part thereof, these being applications of the principle of fixtures, previously treated.49 So, one may mortgage things which are the natural increase of any things which he owns at the date of the mortgage, he being said to have such increase "potentially.50 Accordingly, it is held that the owner of land may mortgage crops to be grown thereon, "for the land is the mother and root of all fruits. Therefore, he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant."51 In some states, however, it is held that a mortgage of annual crops (fructus industriales), which have not yet been planted, is invalid, especially as against attaching creditors, since such crops cannot be regarded as having even a potential existence, they being distinguished in this respect from the spontaneous product of the earth, or the increase of that which is already in existence.52
49. Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 719; Wharton v. Moore, 84 N. C. 479, 37 Am. Rep. 627; Winslow v. Merchants Ins. Co., 4 Mete. (Mass.) 314, 38 Am. Dec. 368;
Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 6 L. R. A. 249, 15 Am. St. Rep. 235, 23 N. E. 327. See ante, Sec. 270.
50. Philadelphia, W. & B. R. Co. v. Woelpper, 64 Pa. St. 366, 3 Am. Rep. 596; Emerson v. European & N. A. Ry. Co., 67 Me. 387, 24 Am. Rep. 39.
51. Hobart, C. J., in Grantham v. Hawley, Hob. 132, To the same effect, see Jones v. Webster, 48 Ala. 109; Arques v. Wasson 51 Cal. 620, 21 Am. Rep. 718; Everrnan v. Robb, 52 Miss. 653, 24 Am. Rep. 682; Cotten v. Willoughby, S3 N. C. 75; Cudworth v. Scott, 41 N. H. 456; Moore v. Byrum 10 Rich. (S. C.) 452, 30 Am. Rep. 58. But the crops must be clearly identified in the mortgage by reference to the land on which, and the year or years within which, they are to be grown, Emerson v. European & N. A. Ry. Co., 67 Me. 387, 24 Am Rep. 39; Shaw v. Gilmore, 81 Me. 396, 17 Atl. 314; Stephens v. Tucker, 55 Ga. 543.
52. Hutchinson v. Ford, 9 Bush (Ky.) 318, 15 Am. Rep. 711; Rochester Distilling Co. v. Rasey, 142 N. Y. 570, 40 Am. St. Rep. 635, 37 N. E. 632; Gittings v. Nelson, 86 111. 591; Long v. Hines, 40 Kan.
Mortgage of equity. Even in jurisdictions in which a mortgage ordinarily involves a transfer of the legal title, it cannot have that effect if the mortgagor has not the legal title as, for instance, when a cestui que trust mortgages his interest under the trust, and so it is recognized in England that a junior mortgage, that is, a mortgage of land already subject to a mortgage, vests no legal title in the junior mortgagee, such title being already vested in the prior mortgagee.53 It does not appear, however, that even in that jurisdiction the lack of legal title in the mortgagor at the time of making the mortgage substantially affects the rights of the mortgagee as against the mortgagor. There a second mortgagee,54 as well as the mortgagee of a beneficial estate under a trust,55 has been regarded as entitled to possession as against the mortgagor. And a second mortgagee is entitled to strict foreclosure, as is an ordinary legal mortgagee.56 There is in one state a decision that, though a first mortgagee has the legal title for the purpose of enforcing his security, a third person cannot assert this as an outstanding title as against the second mortgagee.57