Page:Black's Law Dictionary (Second Edition).djvu/801

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More mnnis. solvit. Death dissolves all things. Jenk. Cent. p. 160, case 2. Applied to the case of the death of a party to an action.

MORSELLUM, or MORSELLUS, TEE.- REI. in old English law. A small parcel or hit of land.

MORT CIVILE. In French law. Civil dealli, as upon conviction for felony. It was nominally abolished by a law or the 31st of llliiy, 18.‘.-4, but something very siiniiar to it. ln effect at least. still remains. Thus, the property of the condemned, possessed by him at the date of his conviction, goes and be- longs to his successors, Ulériiiers.) as in case or an intestacy; and his future acquired property goes to the sta‘e by rigbt of its pre- rogative, (par drait de déshércnce,) but the state may, as a matter of grace, niolze it over in whole or in part to the widow and chil- dren. Brown.

MORT D‘ANCES'I‘oR. An ancient and now almost obsolete remedy in the English law. An nssixe of ilmrt d'am'cstor was a writ which lay for a person whose ancestor died seised of lands in fee simple, nnd after his death a stranger abated; and this writ di- l'1.‘.l ted the sheriff to summon a jury or assize, who should view the ln_nd in question and recognize whether such ancestor were selsed thereof on the day of his death, and whether the deniandnnt were the next heir.

MORTALITY. This word, in its ordi- nary sense never meiins violent death, but death arising from natural causes. Law- rence v. Aherdein, 5 Barn. & Ald. 110.

MORTGAGE.}} An estate created by a collyeyance absolute in its form, but intended to secure the performance of some act, such as the payment of money, and the like, by the grnntor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance. 1 Washli. Real Prop. ‘-175.

A conditional conveyance of land. designed as a security for the payment of money, the fulfillment of some contract, or the perform- ance of some act, and to be void upon such payment. fulfillment, or performance Mit- chell v. Burnhain. 44 Me. 2 ..

A debt by specialty. secured by a pledge of lands, of Wllltli the legal (J\\iJel‘]'J is vested in the creditor, but of which. in equity, the debtor and those claiming under him remain the actual ovmeis, untii debarred by judicial sentence or their own laches. Coote, Moi tg. 1.

The foregoing definitions are applicable to the common-law conception of a mortgage. But in many states in modern times, it is regarded as a mere lien, and not as creating a title or estate. It is a pledge or security or particular property for the payment of a debt or the performance of some other obli-



gation, whatei er form the transaction may take, but is not now regarded as a convey- ance in effect, though it may be cast in the form of a conveyance. See Mutli v. Goddard, 28 Mont. 237. 72 I-‘ac. 621, 98 Am. St. Rep. 533; Johnson v. Robinson, 68 Tex. 399, 4 S. W. 625: In re McConnell’s Estate. 74 Cal. 217, 15 Pac. 746; Klllebrew v. Flines, 104 N. C. 182. 10 S. E. 159, 17 Am. St Rep 672. To the same purport are also the following statutory definitions:

Mortgage is a righi: granted to the creditor over the property of the debtor for the secu- rity of his debt, and gives him the power of having the property seized and sold in default of payment. Civ. Code La. art. 3278.

Mortgage is a contract by which specific property is hypothecated for the performance of an act, without the necessity of a change of possession. Cir. Code Cal. 5 2920.

—Clia_ttel mortgage. A mortgage of goods, chattels, or personal property. See CHATTEL Mon'rGAGE.—Cunventioiis.1 mortgage. The conventional mortgage is a contract by which a person binds the whole of his property, or Ii portion of _it only, in favor of another, to secure the execution of some engagement, but without divest himself of possession. Civ. Code La. art. 3 90: Succession of Benjamin. 39 La. Ann. 612 2 South. 187. It is distingukhed from the “li-.-gal" mortgage, which is a prnllcge which the law alone in certain cases gives to a creditor over the property of his rlebtor. uithout stipu- lation of the parties. This last is very much like _a generni lien at common law, created by the law rather than by the act of the paities, such as a judgment ien.—]-3qnita'ble mort- gage. A specific lien upon real property to secure the payment of money or the perfoimiince of some other obligation, which a court of eq- uity will recognize and enforce, in accordance with the clearly ascertained intent of the parties to that effect, but which lnclis the essential features of a mortgage, either because it grows out of the transactions of the parties without any deed or express contract to give a lien, or because the instrument used for that purpose is wanting in some of the characteristics of a common-law mortgage, or, being ab- solute in form. is accompanied by a collateral reservation of a right to redeem, or because an explicit agreement to give a mortgage has not been carried into effect. See 4 Kent. Comm. 150: 2 Story. Eq. Jllr. § 101.“: Kntchiim v. St. louis, 101 U. S. 306, 25 L. Ed. ‘F99; Pnyne v. Wlsnn, 74 N. Y. 349; Gessn-er v. Paimateer, 89 Cal. 89. 26 Pac. 7S9, 13 L. R. A. 18!; (‘um- things v. .T'ir-kson. 55 N. J. Eu. 805, 38 Atl_ 763; Hall v Railrnnd C 59 A111 " ‘ Brndlev v.

.\lerrill. 88 Me. 319. 33: Au.‘ ioci: Cartel‘ v. Holman, 60 M0. 504. In English law, the following mortgages are equitable: ( Wl.u=re the

subject of a mortgage is trust property, which security is effected either by a formal deed or a written memoiiinduin, notice being given to the trustees in order to preserie the priority. (Q “here it is on equity of redemption, which is merely a right to bring an action in the chaneerv division to redeem the estate. (3) Whcre there is a written agreement only to mnlie xi mortflsre, which creates an equitable lien on the land. (4) Where a debtor deposits the titledoeds of his estate with his creditor or some person on his behalf, without even a verbal com- munication. The deposit itself is deemed evi- dence of an executed agreement or contract [or ii rnoi1giu';e for such estate. W'harton.—First mortgage. The first (in time or right) of a series of two or more mortgages covering the some property and successively attaching us

hens upon it; also, in a more particular sense.