This section is from the book "Popular Law Library Vol7 Equity Jurisprudence, Trusts, Equity Pleading", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
A mortgage is a conveyance of either real or personal property, as security for the payment of a debt, or the performance of some act. The Supreme Court of the United States,1 has defined a mortgage to be "an estate upon condition defeasible upon the performance of the condition according to its legal effect."
The following quotation gives an admirable brief account of the origin and history of mortgages:
"The idea of a mortgage and its characteristics have been by some writers ascribed to the Jews; by others it is said that the civil law, which distinguished between pledges and thing hypothecated, is responsible for the mortgage; while yet others look upon it as a corollary of the common law doctrine of estates upon condition.2 However that may be, it is certain that a mortgage, or transaction in the nature thereof, was known to English law at a period anterior to the Norman conquest.3 After that date, owing to the severity of the feudal system with respect to alienation of land, a tenant in chivalry being unable to alienate in the absence of a license therefor, mortgages were not in common use until the restrictions upon alienation were removed by a statute permitting all persons except the King's tenants in capite to alien all or any part of their lands at their discretion.4 The result of this statute was that two methods of securing payment of money by means of a conditional alienation of land became popular, which are distinguished by Littleton as vivum vadium, and mortuum vadium, the latter being the modern common law mortgage." 5
1 United States vs. Fisher, 2
Cranch, 358. 2 Kyger vs. Ryley, 2 Neb., 20.
3 1 Jones on Mortg. (4th ed.), Sec. 1. 4 Powell on Mortg., 3; 1 Steph. Gom., 327.
The distinction between a mortgage or mortuum vadium and a vivum vadium is thus explained by Coke:
" 'Mortgage' is derived of two French words, viz., mart, that is mortuum, and gage, that is vadium or pignus. And it is called in Latin mortuum vadium or morgagium. Now it is called here mortgage or mortuum vadium, both for the reason here expressed by Littleton, as also to distinguish it from that which is called vivum vadium. Vivum autem dicitur vadium, quia nunquam moritur ex aliquad parte quod ex suis proventibus acquiratur. As if a man borrow a hundred pounds of another, and maketh an estate of lands upon him, until he hath received the said sum of the issues and profits of the land, so as in this case neither money nor land dieth, or is lost (whereof Littleton speaketh in this chapter), and therefore it is called vivum vadium." 6
The Welsh mortgage was intermediary in its character between the mortgage and the vivum vadium. In the Welsh mortgage the mortgagee took possession of the land, and the use of the land was set off against the use of the money; the mortgagor paying no interest, and the mortgagee not being compelled to account for the rents and profits of the land.