Page:Harvard Law Review Volume 4.djvu/28

12 12 HARVARD LAW REVIEW, Still another device remained to be tried. Driven from every form of deed which in any way admitted or indicated on its face the notion of security, ingenious conveyancers devised the plan of having a necessitous borrower convey his land to the creditor outright, taking back no writing whatever, but trusting entirely to an oral understanding. But no sooner did courts of equity lay hold of this new enterprise, than they declared this also to amount in equity to a mortgage ; and in England, where the mortgagor's estate is in all cases merely equitable, a mortgage in this form does not essentially differ in results from a mortgage by condi- tional deed. There remains to be recounted perhaps the most interesting stage of all in the story of mortgage law ; namely, the radical divergence, without legislation, of this country from England. When this country was colonized, about A.D. 1600, the law of mortgage was perfectly well settled in England. It was established there that a mortgage, whether by deed upon condition, by trust deed, or by deed and defeasance, vested the fee, at law, in the mortgagee, and that the mortgagee, unless the deed reserved possession to the mortgagor, was entitled to immediate possession. Theoretically our ancestors brought this law to America with them. Things ran on until the Revolution. Mortgages were given in the English form, by deed on condition, by deed and defea- sance, or by trust deed. It was not customary in Plymouth or Massachusetts Bay, and it is probable that it was not customary elsewhere, to insert a provision that the mortgagor, until default in payment, should retain possession. Theoretically, during the one hundred and fifty years from the first settlement to the Rev- olution, the English rules of law governed all these transactions, and, as matter of book law, every mortgagee of a house or a farm was the owner of it, and had the absolute right to take possession upon the delivery of the deed. But the curious thing about this is, that the people generally never dreamed that such was the law. As there gradually grew up a class of trained lawyers, they must have ascertained what the book law on the subject was. The people, however, took issue with them. To set the dispute at rest, and to inform the people what the law was. Judge Trowbridge, of the Supreme Judicial Court of Massachusetts, undertook to explain the law to his fellow-citizens, in a semi-official deliverance, known as
 * ' Judge Trowbridge's Reading," a paper which was deemed of so