Page:Harvard Law Review Volume 4.djvu/18

2 2 HARVARD LAW REVIEW. " should despise thee," says an ancient recorded Egyptian marriage settlement, extremely detailed in its provisions, " in case I should take another wife than thee, I will give thee twenty argenteus, in shekels one hundred, twenty argenteus in all. The entire of the property which is mine and which I shall possess, is security of all the above words until I shall accomplish them according to their tenor." ^ Nevertheless, in our form of giving security on real estate to secure a common debt, or otherwise to provide assurance, we find a contract so artificial and so difficult of apprehension as to elude definition. In speaking of real-estate mortgages in England, where, from a difference in theory between the Eng- Hsh law and ours, to be noticed later, the difficulty of definition is less than it is with us, one of the clearest of modern writers, Mr. Williams, attempts to avoid the defects of earlier definitions by defining a mortgagee's estate in land as " a mortgage debt; "^ and yet he is compelled, in the very first page of a chapter so en- titled, to admit that a debt is not an essential feature of a mort- gage estate ; ^ for of course there may easily come to exist, in any one of a variety of ways, a mortgage without a personal liability. A common mortgage deed is, in its form, neither more nor less than a deed upon condition. It first professes to convey the land outright ; it then goes on with a proviso that upon payment of a certain sum at a certain day, for instance, the conveyance shall be null and void. It is precisely in the form of deeds upon condition, such as are given without the slightest color of the idea of mortgage. A deed on condition that the grantee shall build a mill on the land within two years,* and a deed on condition that the grantee shall pay a certain note within two years, may be word for word in the same form ; and yet, while the one is in fact a conveyance upon condition, and may give a fee, the other is a mortgage, and gives only a chattel estate in the land, — only a lien. A person unfamiliar with the English and the Ameri- can law, but versed in the English tongue and in law in general, would never dream that a deed in this form, apparently clear and 1 Records of the Past, vol. x. pp. 75-78, where the instrument is characterized by the learned editors as a " mortgage." Comp. Just. Inst. 1. iv. tit. 6, § 29. 2 Williams, Real Prop. 421. 8 Ibid.
 * Langley v. Chapin, 134 Mass. 82.