Page:Harvard Law Review Volume 4.djvu/20

4 4 HARVARD LAW REVIEW. ownership of the land is gone, at law, and the legal ownership is now in the mortgagee,^ subject only to a right of redemption in equity, — a proposition maintainable only by viewing the mort- gage deed as a deed on condition and not as a deed creating a lien. The truth is, that what the deed says, and what some centuries ago it really meant, the courts have gradually forced into mean- ing a very different thing ; and that legislators, through caution, or through lack of progressive thought, have chosen to import from time to time new contract features into the ancient form, rather than to establish a new form, or to revert to an ancient form in harmony with fact. And so it is that while a mortgagee's interest in land has for a long period, in this country, been a mere chattel estate, and has amounted in substance to a mere pledge of the land, and is constantly characterized as such, we still continue to create it by a deed professing in terms to grant a conditional fee, and permit to cling to the contract, Hke a lichen growth, cer- tain embarrassing features of real-estate title. The story of the way in which this has come about offers to students of law a suggestive lesson in processes of legal thought. The explanation of our present confusion of thought and falsity of statement in mortgage law, and of the singular divergence, by a mere popular drift and without legislation, between England and this country on this head, and, to a certain extent, between two sets of States of the Union, can be explained only by going back to the sources of our mortgage law. But although we have to go so far for a starting-point, we shall not lose ourselves in the obscurity of a dim past, or be disturbed by vagueness in the con- nection of events. In nothing are the traditions of a people more rigid than in the matter of actual land titles and land-title law. The law of land in the States of our Union is full of principles and arbitrary conventions established in England long before the Conquest, — such, for example, as dower, and the forty days' right of a widow. It would probably have been impossible for the Norman judges, after the Conquest, to subvert, if they had desired so to do, the existing land law of England. But those judges enriched and amplified the existing system, and filled its gaps, as occasion was, 1 Currier v. Gale, 9 All. 522.