KFLCC Kingdom Law 2nd Ed.

MORTGAGE

MORS OMNIA SOLVIT

793

gation, whatever 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 Muth v. Goddard, 28 Mont 237, 72 Pac. 621, 98 Am. St Rep. 553; Johnson v. Robinson, 68 Tex. 399, 4 S. W. 625; In re McConnell's Estate, 74 Cal. 217, 15 Pac. 746; Killebrew v. Hines, 104 N. C. 182, 10 S. E. 159, 17 Am. St. Rep. 672. To the same purport are also the following stat utory definitions: Mortgage is a right 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 de fault 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. Civ. Code Cal. § 2920. —Chattel mortgage. A mortgage of goods, chattels, or personal property. See CHATTEL MORTGAGE.—Conventional mortgage. The conventional mortgage is a contract by which a person binds the whole of his property, or a portion of it only, in favor of another, to secure the execution of some engagement, but without divesting himself of possession. Civ. Code La. art. 3290; Succession of Benjamin, 39 La. Ann. 612, 2 South. 187. It is distinguished from the "legal" mortgage, which is a privilege which the law alone in certain cases gives to a creditor over the property of his debtor, without stipu lation of the parties. This last is very much like a general lien at common law, created by the law rather than by the act of the parties, such as a judgment lien.—Equitable mort gage. A specific lien upon real property to se cure the payment of money or the performance of some other obligation, which a court of eq uity will recognize and enforce, in accordance with the clearly ascertained intent of the par ties to that effect but which lacks the essential features of a legal 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 character istics 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. Jur. § 1018; Ketchum v. St Louis, 101 U. S. 306, 25 L. Ed. 999; Payne v. Wilson, 74 N. Y. 348; Gessner v. Palmateer, 89 Cal. 89, 26 Pac. 789, 13 L. R. A. 187; Cum mings v. Jackson, 55 N. J. Eq. 805, 38 Atl. 763; Hall v. Railroad Co., 58 Ala. 23; Bradley v. Merrill, 88 Me. 319, 34 Atl. 160; Carter v. Holman, 60 Mo. 504. In English law, the fol lowing mortgages are equitable: (1) Where the subject of a mortgage is trust property, which security is effected either by a formal deed or a written memorandum, notice being given to the trustees in order to preserve the priority. (2) Where it is an equity of redemption, which is merely a right to bring an action in the chan cery division to redeem the estate. (3) Where there is a written agreement only to make a mortgage, which creates an equitable lien on the land. ^4) Where a debtor deposits the title deeds 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 for a mortgage for such estate. Wharton.—First mortgage. The first (in time or right) of a series of two or more mortgages covering the same property and successively attaching as hens upon it; also, in a more particular sense,

Mors omnia solvit. Death dissolves all things. Jenk. Cent p. 160, case 2. Applied to the case of the death of a party to an ac tion. MORSEiLUM, or MORSELLUS, TER R S . In old English law. A small parcel or bit of land. MORT CIVILE. In French law. Civil death, as upon conviction for felony. It was nominally abolished by a law of the 31st of May, 1854, but something very similar to it, in 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, (he'ritiers,) as in case of an intestacy; and his future acquired property goes to the state by right of its pre rogative, (par droit de de'she'rence,) but the state may, as a matter of grace, make it over In whole or in part to the widow and chil dren. Brown. MORT D'ANCESTOR. An ancient and now almost obsolete remedy in the English law. An assize of mort d'ancestor was a writ which lay for a person whose ancestor died seised of lands in fee-simple, and after his death a stranger abated; and this writ di rected the sheriff to summon a jury or as size, who should view the land in question and recognize whether such ancestor were seised thereof on the day of his death, and whether the demandant were the next heir. MORTALITY. This word, in its ordi nary sense, never means violent death, but death arising from natural causes. Law rence v. Aberdein, 5 Barn. & Aid. 110. MORTGAGE. An estate created by a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money, and the like, by the grantor 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 Washb. Real Prop. *475. 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. Burnham, 44 Me. 299. A debt by specialty, secured by a pledge of lands, of which the legal ownership is vested in the creditor, but of which, in equity, the debtor and those claiming under him remain the actual owners, until debarred by judicial sentence or their own laches. Coote, Mortg. 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 of particular property for the payment of a debt or the performance of some other obli