Page:Harvard Law Review Volume 4.djvu/19

3 THE STORY OF MORTGAGE LAW, 3 intelligible in its terms, could have for its single object the creation of a lien. The writer to whom allusion has just been made is entirely capable of defining anything which is capable of definition, and the difficulties which he and every one else meets in attempting to define a mortgagee's estate in land, lie in the fact that in the crea- tion of this hen we employ fictitious statements, and with the resulting obscurity which usually attends upon fictions. A com- mon mortgage deed says one thing; it really means another thing; and yet there cling to the net result certain barnacle fea- tures, due to what the writing says but does not mean. A mort- gage deed commonly professes to vest in the grantee real estate ; it really vests in him, in this country, only a chattel interest in real estate. It declares that upon default the mortgagee shall at once, by the mere operation of the deed, have an absolute title, free from all right of the grantor ; it really gives the grantee, from the time of default, a mere right to enforce payment or indemnity. It professes to leave in the grantor nothing but a right of re-entry upon certain terms ; it really leaves in him, in this country, the absolute ownership, subject, it is true, to a charge, but only as the ownership of land may always be subject to a charge, — for taxes, for an annuity, for a mechanic's lien, for debts of an owner deceased. It must have the word ** heirs," ^ or the security dies with the mortgagee, even though the debt is unpaid ; yet the inter- est granted is not realty ; there is no dower or curtesy in it, because it is not real estate, and it goes to the executor, and not to the heirs. In Massachusetts a mortgage on land is attachable as realty if owned by a State bank or a domestic insurance corporation ; ^ otherwise not. We find it laid down, on the one hand, in the law reports and statutes of a given State, that a mortgage of land is a mere " pledge " or " hypothecation " of it, and creates only a his title by simply cancelling his bond of defeasance ; * and yet we find in the same reports the doctrine laid down that, unless the condition is performed on the day fixed, the mortgagor's 1 Sedgwick v. Laflin, 10 All. 430 ; AUendorff v. Gaugengigl, 146 Mass. 542 ; i Jones, Mortg. § 67. 2 Mass. Pub. Sts. c 118, § 92 ; St. 1887, c. 214. § 27. Butler V Page, 7 Met. 40, 43 ; Mass. Pub. Sts. c. 178, § 44.
 * Hen ; " ^ that a mortgagor by deed and defeasance may relinquish
 * Jackson v. Mut. Fire Ins. Co., 23 Pick. 418, 424 ; Ewer v. Hobbs, 5 Met. i, 3 ;
 * Trull V. Skinner, 17 Pick. 213.