mortgage
Definitions from Case Law · United States Supreme Court
Definitions from Case Law
From 49 U.S. 441 - Sheldon v. Sill · 1850Most cited · 530 citing opinions
in equity
In equity, the debt or bond is treated as the principal, and the mortgage as the incident. It passes by the assignment or transfer of the bond, and is discharged by its payment. It is, in fact, but a special security, or lien on the property mortgaged. The remedy obtained on it in a court of equity is not the recovery of land, but the satisfaction of the debt. It is the pursuit by action of one debt on two instruments or securities, the one general, the other special.
How the Supreme Court has restated “mortgage”
Each Supreme Court definition of “mortgage,” sized by how often later courts cited it. “Change” is measured by wording overlap with earlier definitions — a rough signal, not a semantic judgment.
How often courts cite the cases defining “mortgage”
Court decisions citing the 9 opinions that defined “mortgage” — 1,936 in all, by decade. Counts are citations to the defining cases as a whole, not verified uses of the term. The dip in the most recent years is a data-coverage gap, not a real trend — our corpus holds fewer opinions from the latest years.
All 10 definitions, chronological · 1812–1872
- ORIGINAL
It is, therefore, a necessary ingredient in a mortgage, that the mortgagee should have a remedy against the person of the debtor. If this remedy really exists, its not being reserved in terms will not affect the case. But it must exist in order to justify a construction which overrules the express words of the instrument.
necessary remedy against the person of the debtor
Every contract for the receiving of money, by the conveyance of a real estate to the lender, not made in contemplation of an eventual arrangement of property, is, in equity, deemed a mortgage. . . . In equity, therefore, the right of redemption is considered as inseparably incident to every contract founded on a mortgage, and can no more be restrained than the power of tenant in fee simple to alien generally, or of tenant in tail, to suffer a recovery; it being a maxim in equity, that the same estate or interest cannot be a mortgage at one time, and at another time cease to be so.
defined; equity of redemption inseparable
where the mortgagee, instead of seeking to obtain possession of the land, prays to have his debt paid, and the property pledged for its security sold, for the purpose of raising the money... the demand is, in reality, a personal one, the debt being considered as the principal, and the land merely as an incident
debt is principal, land is incident
in equity, this legal title is regarded as a trust estate, to secure the payment of the money; and, therefore, when the debt is discharged, there is a resulting trust for the mortgagor... courts of equity follow the law, they acknowledge the legal title of the mortgagee, and never deprive him of his right at law until his debt is paid.
equity view
It is true that, in discussions in a court of equity, a mortgage is sometimes called a lien for a debt. And so it certainly is, and something more; it is a transfer of the property itself as security for the debt. This must be admitted to be true at law, and it is equally true in equity, for in this respect equity follows the law.
vs lien
a mortgage is a mere security for a debt, and creates only a lien or incumbrance
equitable doctrine
As between the mortgagor and all others than the mortgagee, it is a lien, a security, and not an estate. But as between the parties to the instrument, or their privies, it is a grant which operates to transmit the legal title to the mortgagee, and leaves the mortgagor only a right to redeem.
The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.
Though in form a conveyance, a mortgage is both at law and in equity a mere security for the debt. A mortgage is a mere chose in action; it only confers upon the holder a right to proceed against the property mortgaged, upon a given contingency, to enforce, by its sale, the payment of his demand. This right has no locality independent of the party in whom it resides.