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 .
In the states which have adhered to the title theory of a mortgage, a mortgage instrument still takes the form of a conveyance on condition subsequent, and, singularly-enough, the same form is utilized in many of the states which have adopted the lien theory. In some of the latter states the statute provides a concise and simple form, omitting any words of conveyance.
220, 10 Am. St. Rep. 192, 19 Pac. 796. That such a mortgage is good even against creditors, see Arques v. Wasson, 51 Cal. 620, 21 Am. Rep. 718; Butt v. Elett, 19 Wall.(U. S.) 544, 22 L. Ed. 183; Wheeler v. Becker, 68 Iowa, 723, 28 N. W. 40. The decisions in the different states are collected in 11 Corpus Juris. 443.
53. This is the basis of the English doctrine of "tacking" See post Sec. 639.
54. Re Gordon 61 Law Times 299. See Ocean Accident & Guarantee Corp v. Ilford Gas Co. (1905) 2 K. B. 493.
55. Langton v. Langton, 7 DeG. M. & G. 30; Antrim County Land Building and Investment Co. v. Stewart (1904) 2 Ir. Rep. 445.
56. Fisher, Mortgages (6th Ed.) 1002; Halsbury, Laws of England vol. 21, p. 272.
57. Savage v. Dooley, 28 Conn, 411, 73 Am. Dec. 680.
It has occasionally been said in effect that if the purpose of the transaction is to secure the payment of a debt or the performance of some other obligation, the instrument in which the terms of the transaction are incorporated will constitute a mortgage,58 and that this is so, to some extent at least, appears from the numerous cases in which a conveyance absolute in form has been regarded as a mortgage.59 In states, however, which have retained the title theory of a mortgage, an instrument which, while showing an intention to secure the payment of a debt, omits all words of conveyance, since it would appear to be ineffective to vest the legal title in the mortgagee, may properly be distinguished from a mortgage instrument in the ordinary form, which transfers the legal title, by the designation of "equitable mortgage"60 or "equitable lien."61 It creates a mortgage or lien, but not a mortgage of the ordinary character.
In jurisdictions in which the common law conception of a mortgage as involving a transfer of the legal title is still retained, the mortgage is evidently within the requirement of the English Statute of Frauds, or its equivalents in the various states, requiring an estate or interest in land to be created by writing. And even in jurisdictions where the mortgage is regarded as creating merely a lien on the mortgagor's interest in the land, the mortgage would presumably be regarded as involving the creation or transfer of an interesl in land within the meaning of such statutory requirements.62 In other words, it does not seem that in any state an oral mortgage of an interest in land would be upheld except in so far as an absolute conveyance of the same interest would be upheld.
58. Stryker v. Hershey, 33 Ark. 264; De Leon v. Higuera, 15 Cal. 483; Jackson v. Carswell, 34 Ga. 279; Howe v. Austin, 40 La. Ann. 323; Morrill v. Skinner, 57 Neb. 164, 77 N. W. 375; National Bank of Columbus v. Tennessee Coal, Iron, & Railroad Co., 62 Ohio St. 564, 57 N. E. 450; Thacker v.
Morris, 52 W. Va. 220, 94 Am. St. Rep. 928, 43 S. E. 141.
59. Post, Sec. 605.
60. See Newlin, Finley & Co. v. McAfee, 64 Ala. 357; Ward v. Stark Bros., 91 Feb. 268, 121 S. W. 382.
61. Post, Sec. 661.
In states where the title theory of a mortgage still obtains, the instrument must comply with the requirements existing as to the execution of an absolute conveyance, in order that it may be sufficient to vesl the legal title in the mortgagee,63 unless, the statute provides some other mode of execution. In most, if not all the states, there is at the present day an express statutory provision as to the mode of executing a mortgage of land. But even in those states, as in others, an instrument which is not so executed as to receive recognition as a mortgage in a court of law may occasionally be upheld in equity as an equitable lien or charge. Such is the case of a mortgage which is defective for lack of a seal,64 or a witness.65 In one state it has even been held that an unsigned mortgage, if acknowledged, was valid in equity,66 a view which appears to be open to serious question.67
62. See Bogert v. Bliss, 148 N. Y. 194, 51 Am. St. Rep. 684, 42 N. E. 582; Roberts Trustee v. Terry, 161 Ky. 397, 170 S. W. 965; Thomas Appeal, 30 Pa. 378.
63. See Dunn v. Raley, 58 Mo. 134; Peckham v. Haddock, 36 111. 38; Goodman v. Randall, 44 Conn. 321; Article by H. W. Chaplin, Esq. in 4 Harv. Law Rev. 1.
64. Racouillat v. Sansevain, 32 Cal. 376.
65. Longdon v. Wakeley, 62 Fla. 530, 56 So. 408; Stelts v. Martin, 90 So. Car. 14, 72 S. E. 550; Courtner v. Etheredge, 149 Ala. 78, 43 So. 368; Atkinson v. Miller. 34 W. Va. 115, 11 S. E. 1007, 9 L. R. A. 544.
66. Martin v. Nixon, 92 Mo. 26, 4 S. W. 503.
67. See Goodman v. Randall, 4 1 Conn. 321; Shepherd v. Burk-halter, 13 Ga. 443; Gabel Lumber Co. v. West, 95 Neb. 394, 145 N. W. 849; American Savings Bank & Trust Co. v. Helgesen, 67 Wash. 572, 122 Pac. 26.
Applying the common law view that a mortgage involves a conveyance of the legal title, it has occasionally been decided that, if the law requires the presence of words of inheritance for the transfer of an estate in fee simple,68 a mortgage by one having an estate in fee simple, if it omits such words, is effective to give the mortgagee a 'right of recourse against the mortgaged property to the extent of a life estate only.69 While the propriety of this requirement for the purpose of transferring a legal estate in fee simple to the mortgagee appears sufficiently clear, it is difficult to see why a court of equity, regarding the instrument as creating a lien merely, should insist upon the presence of the word "heirs" in order that the lien may cover the whole interest of the mortgagor. And there is a decision to this effect, that if an intention to subject the whole fee simple interest of the mortgagor can be gathered from the language of the instrument, the omission of words of inheritance is immaterial.70 And it has been decided, in a jurisdicton where the lien theory of a mortgage is adopted, that no words of inheritance are necessary.71
The mortgaged land must always be described in the mortgage with sufficient particularity to enable it to be identified, as in the case of any conveyance, but a reference to another instrument, in which the property is described, is sufficient for this purpose.72 An acknowledgment is usually requisite, as in the case of absolute transfers of land, as a preliminary to the record of the conveyance.73 But a mortgage, like an absolute conveyance, though not acknowledged, is ordinarily effective as between the parties, and as against subsequent purchasers with notice thereof.74
68. Ante, Sec. 21 (a).
69. Wilson v. King, 27 N. J. Eq. 374; Allendorff v. Gaugengigl, 146 Mass. 542, 16 N. E. 283; Smith v. Haskins, 22 R. I. 6, 45 Atl. 741; Clearwater v. Rose, 1 Blackf. (Ind.) 137.
70. Brown v. National Bank, 44 Ohio St. 269, 6 N. E. 648.
71. Bredenberg v. Landrum, 32
S. C. 315, 10 S. E. 956
72. Wilson v. Boyce, 92 U. S. 320, 23 L. Ed. 608; Freed v. Brown, courts of the various states would usually, it may be assumed, adopt the same rule as regards the necessity of acceptance in the case of a mortgage as in the case of an absolute conveyance, and the considerations bearing upon the matter have been referred to in the latter connection.
41 Ark. 495; De Leon v. Hig-uera, 15 Cal. 483; Atkins v. Paul, 67 Ga. 97; Cochran v. Utt,
42 Ind. 267; Stead v. Grosfield, 67 Mich. 289, 34 N. W. 871; Tucker v. Field, 51 Miss. 191;
Boon v. Pierpont, 28 N.
There are in all the states provisions requiring the recording of mortgages, but these have been regarded, almost invariably, as not rendering the record of a mortgage instrument necessary to its validity.75 The effect of a failure to record the instrument as against third persons is elsewhere considered.76
The mortgage instrument must be delivered,77 as must an absolute conveyance,78 that is, the mortgagor must show, by act or word, his intention that the instrument shall take effect.79 The requisites of a valid and effective delivery are no doubt the same in the case of a mortgage as in the case of an absolute conveyance, a matter which has previously been discussed.
J. Eq. 7; 1 Jones, Mortgages, Sec.Sec. 66, 67.
73. Ante, Sec. 460.
74. Johnson v. Graham Bros. Co., 98 Ark. 274, 135 S. W. 853; Roane v. Baker, 120 111. 308, 11 N. E. 246; Perdue v. Aldridge, 19 Ind. 290; Carleton v. Byington, 18 Iowa 482; Straeffer v. Rodman, 146 Ky. 1, 141 S. W. 742; Hannah v. Davis, 112 Mo. 599, 20 S. W. 686; Prout v. Burke, 51 Neb. 24, 70 N. W. 512; Lynch v. Cade, 41 Wash. 216, 83 Pac. 118.
75. See, e. g., Rhea v. Planters' Mut. Ins. Ass'n, 77 Ark. 57, 90 S. W. 850; Downing v. Le Du, 82 Cal. 471, 23 Pac. 202; Howard Mut. Loan & Fund Ass'n v. Mclntyre, 3 Allen (Mass.) 571; Eley v. Norman, 175 N. C. 294, 95 S. E. 543; Gill v. Pinney's Adm'r, 12 Ohio Si. 38; Moore v. Thomas, 1 Ore. 201;
Cavanaugh v. Peterson, 47 Tex. 197; Wilder's Ex'r. v. Wilder, 82 Vt. 123, 72 Atl. 203; Claridge v. Evans, 137 Wis. 218, 25 L. R. A. (N. S.) 144, 118 N. W. 198.
76. Ante, Sec.Sec. 567, 563.
77. Freeman v. Peay, 23 Ark. 439; Knapstien v. Tinn-ette, 156 111. 322, 40 N. E. 947; Woodbury v. Fisher, 20 Ind. 387, 83 Am. Dec. 325; Bell v. Farmers' Bank of Kentucky, 11 Bush (Ky.) 84, 21 Am. Rep. 205; Gabel Lumber Co. v. West. 95 Neb. 394, 145 N. W. 849; Shirley v. Burch, 16 Ore 83, 8 Am. St. Rep. 273, 8 Pac. 351; Farmers' & Mechanics' Bank v. Drury, 38 Vt. 426; Garner v. Martin, 73 W. Va. 407 80 S. E. 495 (deed of trust).
78. Ante, Sec. 461.
79. Hawes v. Hawes, 177 111. 409, 53 N. E. 78; Nazro v. Ware,