Page:EB1911 - Volume 18.djvu/909

 American Portland cement was manufactured in 1874 by Mr. David O. Taylor.

The chief works of reference on this subject are G. R. Burnell, Limes, Cements, Mortars; Rivington; Notes on Building Construction; F. W. Taylor and S. E. Thompson, A Treatise on Concrete, Plain and Reinforced.

 MORTARA, EDGAR, an Italian Jew, of a Bologna family, whose abduction in early childhood (1858) by the Inquisition occupied for several years the attention of European diplomacy. Edgar Mortara, when between five and six years of age, fell ill. His nurse, a Catholic, arranged with her priest for his baptism in that faith, unknown to his parents, on the 24th of June 1858. She had acted in the same way with his elder brother, who had been ill a year or two previously, but on his recovery the boy continued to be educated as a Jew. This time she determined to make sure of her convert. Everything was concerted in advance with the ecclesiastical authorities, and immediately after the baptism both child and nurse disappeared. The story became public property, and protest was aroused in nearly every European country. The English and French governments made representations to the Vatican, but Pius IX., through the medium of the Civiltà Cattolica, maintained that the question at issue was a spiritual one, outside his temporal jurisdiction. He accordingly declined to take any action, meanwhile indicating the direction of his sympathies by making Mortara his ward. In 1861 the Mortara family induced the Italian government to demand the prosecution of the nurse. The Vatican replied that she had entered a nunnery, and subsequently, on the threat of intervention by Prussia, induced the Mortara family to withdraw their plaint. After the capture of Rome by the Italian troops in 1870 Edgar Mortara had the opportunity of reverting to Judaism, but he refused to do so, and not long afterwards became an Augustinian.

MORTARA, a town of Lombardy, Italy, in the province of Pavia, 354 ft. above sea-level, a railway junction situated between the Ticino and the Po, 32 m. by rail S.W. of Milan. Pop. (1901), 7298 (town); 8697 (commune). Lines run to Milan, Pavia, Alessandria, Casale Monferrato and Vercelli. The church of San Lorenzo is in the Gothic style of the 14th century with a brick façade. Outside the town is the Lombard Romanesque church of S. Albino. Mortara has iron-works and manufactures of hats and cheese. Here the Austrians defeated the Piedmontese in 1849.

MORTGAGE (an old French legal word, meaning “dead pledge,” translated in medieval Latin mortuum vadium), the securing “money or money’s worth” by making it a charge upon property, real or personal, so that if the debt be not paid by a time agreed upon by the parties, the creditor may foreclose or sell the property and pay himself out of the proceeds. In English law this is done by an actual or executory conveyance of the property to the creditor, subject only to its being defeated if the debt should be paid at the time fixed—an arrangement to which the law has attached peculiar incidents designed to carry out its real object.

The history of mortgage transactions in Roman law shows three well-marked stages; In the beginning the estate was conveyed absolutely to the creditor, who made a covenant (fiducia) to reconvey it when the debt should be paid. All the interest, however, in the meantime passed from the debtor to the creditor, and should the latter refuse to reconvey there was no remedy to the original owner except a personal action. In the second stage (that of pignus) the property did not pass to the creditor; he merely received possession of the thing pledged, together with certain rights of sale, &c., in the event of payment not being made at the time appointed. Lastly, without parting with the possession even of the pledge the debtor could create a lien or charge (hypotheca) over it in favour of the creditor, who acquired thereby a right on failure of payment to follow the thing by real action against the possessor, whosoever he might be, and to repay himself from the proceeds of his sale.

The mortgage of English law is the result of two distinct influences. Its origin and form belong to the common law; the restrictions by which it is made to serve the purpose of a security only, and nothing more, belong to the courts of equity. In the eye of the common law the mortgagee was the owner of the estate conveyed in the mortgage; in equity the mortgagor remains the real owner, and the mortgagee is merely an encumbrancer. A, the owner of land in freehold, conveys to B and his heirs, with a proviso that on repayment of money lent by B to A, on a future day, with interest until payment, B or his heirs will reconvey the estate to A and his heirs, and that, until default be made in payment, A and his heirs may hold without interruption from B and his heirs. This is a common mortgage of land, and at law, after failure of payment, the land belonged absolutely to the mortgagee, while in the meantime, before payment, the legal estate was considered to be vested in him, subject only to being defeated by payment at the proper time. The court of chancery first interfered in the reign of James I. to decree a redemption after forfeiture, and a case in the reign of Charles I. decides that payment after forfeiture has the same effect as payment before. The right of the mortgagor to redeem his estate after it has been forfeited, according to the terms of the deed, is called his equity of redemption. No agreement between the parties was suffered to oust the jurisdiction of the court, or to deprive the debtor of his equity of redemption. And this equity, at first regarded as a mere right of the debtor, became established in course of time as an estate in land which descended to the heirs of the mortgagor. On the other hand, the interest of the mortgagee is part of his personal estate, and passes to his executor and not to his heir. In spite of the terms of the mortgage, the owner of the land is still the owner, and the mortgagee is a creditor for the money he advanced and the interest thereon. It may be a question Whether a given deed is a conveyance or a mortgage, and the court, in deciding, will look at all the circumstances of the case, and will treat it as a mortgage when it was the real intention of the parties that it should operate as a security only. Thus, if the price was grossly inadequate, if the purchaser was not let into immediate possession, if he accounted for the rents to the grantor, retaining an amount equivalent to interest, if the expense of the deed was borne by the grantor, there would be reason to believe that the conveyance was only meant to be a mortgage. And “once a mortgage, always a mortgage”; no subsequent agreements can change its character.

mortgagee may, however, on default of payment file a bill of foreclosure requiring the mortgagor to pay the amount of the debt with interests or costs by an appointed day, or submit to be deprived of his equity of redemption. The effect of failure to pay by the time appointed would be to make the mortgagee absolute owner of the estate; but the court in any foreclosure suit may, at the request of either side, order a sale instead of a foreclosure. And a power of sale is now implied as one of the incidents of the mortgage, unless forbidden or varied by express destination. The mortgagee is entitled to retain out of the proceeds of the sale the amount of his principal, interest and costs, the surplus belonging to the mortgagor. A mortgagor cannot require the creditor to receive payment before the time appointed in the deed; and, on default of payment at the appointed time, he must give the creditor six months' notice of his intention to pay off the mortgage, so that the creditor may have time “to look out for a fresh security for his money.”

When the same land is successively mortgaged to different persons, their rights take priority according to their chronological order. But the operation of equitable doctrines in the formation of the law of mortgage leads to an important modification of this rule. Of the successive mortgagees, the first only takes the legal estate, and this, according to the maxim