Duhaime's Law Dictionary

Mortgage Definition:

An interest given on a piece of land, in writing, to guarantee the payment of a debt or the execution of some action.

Related Terms: Mortgagor, Mortgagee, Antichresis, Hypothec, Welsh Mortgage, Chattel Mortgage, Foreclosure, Reverse Mortgage, Lien

From the Latin term morgagium.

It is a feature of a mortgage that it dies when the debt is paid.

The person lending the money and receiving the mortgage is called the mortgagee; the person who concedes a mortgage as security upon their property is called a mortgagor.

The Manitoba Mortgage Act defines a mortgage as:

"Mortgage ... includes any charge on any property for securing money or money's worth".

At common law, the mortgage was far more pervasive upon the mortgagor and, in fact and in law, constituted a conveyance of title to the mortgagee until the debt was paid, rather than, as is the case now in some jurisdictions, of only kicking-in if there is a default on the loan agreement.

Under the severe terms of a common law mortgage, a frequent dispute would arise as to who was entitled to crops grown on mortgaged land: the mortgagee or the mortgagor, as the common law mortgage vested title, with right to possession and revenues, in the mortgagee.

As the Texas Court of Appeal said in Security Morgate v Gill 27 SW 835 (1894):

"If the common law rule that a mortgage vests title with right to possession and revenues in the mortgagee prevailed in this state, he might have some ground upon which to predicate an objection to the mortgagor's assigning a claim for rent owing for the use of the premises anterior to a foreclosure of the mortgage.

"But such is not the rule here. With us it is well settled that a mortgage is a mere lien upon the property, and vests no estate in the mortgagee."

Or, from Ziegler v Sawyer:

"A mortgage is a mere lien on the property and vests no estate in the mortgagee."

The Louisiana Civil Code, circa 2007, defines a mortgage as:

"Mortgage is a non-possesory right created over property to secure the performance of an obligation."

The more modern form of a mortgage is often referred to as a conventional mortgage to distinguish it from the older version and more austere common law mortgage.

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