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 .
A mortgage is invalid if made for an illegal purpose, as, for instance, when it is the price of future cohabitation,45 when it is given to obtain the suppression of a criminal prosecution,46 or when it is made for the purpose of defrauding creditors,47 or as part of a champertous agreement.48 And so a mortgage given to secure a debt of an illegal character, such as for liquor sold in violation of law,49 or a gambling debt,50 will not be enforced. And a like view has been asserted as to a debt for money loaned in notes of the Confederate States.51
A mortgage which is made to secure payment of a debt consisting partly of legal and partly of illegal items has usually been regarded as valid security for the former, if these can be separated from the latter.52 Occasional decisions to the effect that if the mortgage is accompanied by a single note for the amount secured, and this amount is made up of items some of which are legal and some illegal the mortgage is invalid as to the whole amount,53 appear to assume that the mortgage secures the note, rather than the debt or debts evidenced by the note, a view which is not ordinarily adopted.54 The legal items are recoverable by action,55 and consequently, it is conceived, the mortgage is properly enforcible in so far as it secures such items.56
Screen Mfg. Co., 187 Mass. 557, 73 N. E. 663; Brooks v. Brooks, 169 Mass. 38, 47 N. E. 448; O'Neill v. Bennett, 33 S. C. 243, 11 S. E. 727.
44. See Neumann v. Moretti, 146 Cal. 25, 79 Pac. 510; Lewter v Price, 25 Fla. 574, 6 So. 439; Briggs v. Steele, 91 Ark. 458, 121 S. W. 754.
45. W -- v. B -- , 32 Beav.
574. An obligation under seal, based on past intercourse, is not invalid, Pollock, Contracts (Wil-liston's Ed.) 411, and a mortgage securing such an obligation would be valid.
46. Small v. Williams, 87 Ga. 681, 13 S. E. 589; Owens v. Green, 103 Ky. 342, 45 S. W. 84; Peed v. McKee, 42 Iowa 689; Atwood v. Fiske, 101 Mass. 363, 100 Am. Dec. 124; Meech v. Lee, 82 Mich.
274, 46 N. W. 383; Pearce v. Wilson, 111 Pa. St. 14, 56 Am. Rep. 243, 2 Atl. 99.
47. McQuade v. Rosecrans, 36 Ohio St. 442; Weeden v. Hawes, 10 Conn. 50; Norris v. Norris, 9 Dana (Ky.) 317, 35 Am. Dec. 138.
48. Gilbert v. Holmes, 68 III. 548.
49. Baker v. Collins, 9 Allen. (Mass.) 253; Ressegieu v. Van Wagenen, 77 Iowa 351, 42 N. W. 318.
50. International Bank of Chicago v. Vankirk, 39 III. App. 23; Ellsworth v. Mitchell, 31 Me. 257; Barnard v. Backhaus, 52 Wis. 593, 6 N. W. 252, 9 N. W. 595; Hudson V Moon, 42 Utah 377, 130 Pac. 774.
51. Stillman v. Looney, 3 Cold. (Tenn.) 20. Contra, Scheible v. Bacho, 41 Ala. 423.
Decisions that a mortgage, made for the purpose of obtaining the suppression of a criminal prosecution for money embezzled and also to secure the payment of the money embezzled, is void in toto,57 appear to involve merely an application of the rule that if any part of a single consideration for a promise is unlawful, the promise is wholly void.58 In such case the indebtedness to be secured by the mortgage is non existent, and the mortgage is consequently nugatory.