Page:Harvard Law Review Volume 4.djvu/25

9 THE STORY OF MORTGAGE LAW. 9 Certainly this system was efficient enough. The only thing of which the pledgee could in the least complain was, that in any action which involved the validity of his title, the burden of proof was always on him to show the debt. This difficulty the lender class next set themselves about getting rid of. If it could be con- trived to give the lender, at the outset, not a mere title de vadio, but a title prima facie absolute at its inception, that is, absolute unless and until defeated by affirmative proof of payment, the final problem would be solved. Such a step would give the creditor full and unqualified seisin in the first instance, leaving the debtor only a right to end that seisin by paying according to the strict letter of the deed, and consequently would throw the burden of proof upon the borrower, the pledgor, in any contest which might arise. The solution of the problem was very early found in the use of the deed upon condition. We find no trace in Bracton of any such use of a deed upon condition, and it is quite safe to assume that the device of em- ploying it for security had not then been invented; but from the great variety of instances of conditional grants of which Brac- ton speaks, based on the civil law, it is plain that it only remained for some one to make the experiment. The experiment was made, and the practice, once begun, quickly threw into disuse the mere pledge ; and security upon land now came to be exacted and given by an outright conveyance of the fee, conditioned to be void in case the grantor should within a certain time pay a certain sum, but otherwise to stand absolute. This was precisely our modern mortgage. As it reads upon the records in Boston and in Portland, so it read in England in the thirteenth century. At a very early period the courts began to interpose to defeat the strict operation of these conditional deeds, really given for mere security. Equitable interposition in this regard is commonly attributed to courts of equity as distinguished from courts of law; but 'i. very probably began long before the establishment of distinc, chancery tribunals. If the public opinion of early England demanded a softening of established rules, that modification could perfectly well be effected in England, as it was in Rome, by the introduction of equity into law, through the allowance of exceptions founded on equitable grounds. In very early times