Mortgage

The conveyance of an estate or property by way of pledge for the security of debt, and to become void on payment of it.

4 Kent, Comm. 136.

An estate created by a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money, and the like, by the grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance.

1 Washb. Real Prop. 475.

By the law of several states, a mortgage is no longer a conveyance by which an estate passes, but a mere pledge creating only a lien.

Holmes, Mortg. § 1.

Two general theories prevail as to the nature of the estate created by mortgage. The common-law theory that a mortgage passes title to the mortgagee subject to defeat by the performance of the condition subsequent has been adopted in Alabama (69 Ala. 442), Arkansas (65 Ark. 174), Connecticut (19 Conn. 218), Illinois (1 Scam. 140), Maine (2 Me. 132), Maryland (6 Gill & J. 72), Massachusetts (5 Mass. 120), New Hampshire (5 N. H.) 420), North Carolina (66 N. C. 477), Ohio (10 Ohio, 71), Pennsylvania (77 Pa. St. 250), Rhode Island (6 R. I. 542), Tennessee (10 Humph. 214), and Virginia (4 Rand. 245). The common-law theory, in a somewhat modified form, prevails in Delaware (1 Houst. 320), Mississippi (24 Miss. 368), Missouri (10 Mo. 229), New Jersey (40 N. J. Law, 417), and Vermont (44 Vt. 294). The equitable doctrine that a mortgage conveys only a lien is adopted in California (2 Cal. 491; 64 CaL 514), Colorado (Laws 1887, § 263, p. 174), Florida (17 Fla. 698), Georgia (76 Ga. 384), Idaho (Rev. St. 1887, § 3350), Indiana (27 Ind. 472), Iowa (30 Iowa, 268), Kansas (35 Kan. 120), Kentucky (14 Bush, 788), Michigan (65 Mich. 598), Minnesota (12 Minn. 330), Montana (6 Mont. 596), Nebraska (14 Neb. 246), Nevada (1 Nev. 179), New York (54 N. Y. 599), North Dakota (Rev. Code, § 1733), Oregon (11 Or. 534), South Carolina (27 S. C. 309), South Dakota (Rev. Code 1877, § 1733), Utah (Comp. Laws 1876, p. 478), Washington (3 Wash. T. 318), Wisconsin (7 Wis. 566), 1 Pingrey, Mortg. 16. Both real and personal property may be mortgaged, and in substantially the same manner, except that, a mortgage being in its nature a transfer of title, the laws respecting the necessity of possession of personal property and the nature of instruments of transfer, being different, require the transfer to be made differently in the two cases. See "Chattel Mortgage." A mortgage may in form be either a conveyance with provision for a defeasance, or a conveyance absolute in form, with a collateral agreement for a defeasance. 15 Johns. (N. Y.) 555; 2 Me. 152; 12 Mass. 456. the property, but does some act by which he manifests his determination to bind the same as a security. See "Equitable Mortgage." A legal mortgage is a conveyance of property intended by the parties at the time of making it to be a security for the performance of some prescribed act.

1 Washb. Real Prop. 479.