ticular are the safer, although the shorter and more gene al might be sufficient.

In New England, a deed of land is usually what is called in law a deed-poll; by which is meant a deed of one party, and from him to another. In the other States generally a deed of lands is more commonly in the form of an indenture, which is an inst:ument between two or more parties. The difference between them will be seen in the forms given. The first one is a deed-poll. But most of them are indentures, as they are most frequently used; although a deed-poll that was satisfactory in other respects would generally suffice to give good title to land anywhere.

A form of a deed-poll may be converted into an indenture by changing the beginning of it in the manner shown in the forms, and, whenever the word "grantor" comes, changing that into “the party of the first part." And a deed by indenture is made a deedpoll by changes of an opposite kind. How to make these changes will be seen by comparing the deeds of the two kinds as herein given.

Another difference between the deeds-poll in common use in the New England States, and the deeds by indenture in use elsewhere, must be noticed. If the grantor by a deed-poll has a wife, and it is intended that she shall relinquish her dower, she is not mentioned as grantor, but in the in testimonium, so called, which is that part of the deed which begins with "In witness (or in testimony) whereof;" in this her name is mentioned, and it must be distinctly said that she signs the deed in token of her relinquishment or release of dower. This is shown in the first of the forms annexed to this chapter. But where deeds by indenture are used, there she is joined with her husband, and named as grantor; he and she being "parties of the first part." It is, however, not necessary that any thing should be said in the deed about her release of dower or homestead; but she signs and seals the deed, and, in the acknowledgment, express mention is to be made of her release of dower and homestead, and also that she was separately examined. Some of the forms are drawn in this way. Other forms are written as if the grantor was unmarried, or as if his wife, if he had one, did not intend to give up her dower. But all these forms can be readily altered, and made to resemble either of the forms accordingly as there is or is not a wife, or as, if there be a wife, it is intended that she should join in the conveyance and relinquish her dower, or that the husband should convey subject to the wife's dower. If this last be the intention, it is not necessary to say so, as the mere fact that she is not a party to the deed pre serves for her her right of dower

SECTION III.

MORTGAGES OF LAND.

The purpose of a mortgage is to give to a creditor the security of property. It is very similar to a pledge, although not the same thing.

Mortgages are now made of personal property, as well as of real property; but we will consider in this section a mortgage of real property; or, as it is usually called, a mortgage deed.

This is usually a deed conveying the land to the creditor as fully, and in precisely the same way, as if it were sold to him outright; but with an addition. This consists of a clause inserted before the clause of execution, to the effect that if the grantor (the mortgagor) shall pay to the grantee (the mortgagee) a certain amount of money at a certain time, then the deed shall be void. It is usually expressed in words substantially like these:

"Provided, nevertheless, that if the said A B (the grantor), his heirs, executors, or administrators, shall pay to the said CD (the grantee), his executors, administrators, or assigns, the sum of $ with interest (semi-annually, or otherwise as agreed on), on or before the day of then this deed, and also a certain promissory note signed by said A B, whereby said A B promises to pay said C D, or his order, the said sum at the said time, shall both be void; and otherwise shall remain in full force."

In some States it is more frequent to make a bond, instead of a note, to be secured by the mortgage; and the proviso should be altered accordingly; and it should also be made to express any other terms agreed on. Some of these will be spoken of presently.

In law, every thing is a mortgage which consists of a valid conveyance, and a promise, or agreement, providing that the conveyance shall be void when a certain debt is paid, or the act performed for which the mortgage is security.

This promise or agreement, which converts a simple conveyance of land into a mortgage, usually is contained in the deed itself; and should always be so, for the sake of safety and certainty. This is not, however, strictly necessary in point of law. The transaction becomes a mortgage, if the grantee gives back an instrument, in which it is agreed that the conveyance shall be void if a certain sum of money be paid, or a certain thing be done. This is called an instrument of defeasance; because it defeats or annuls, upon certain terms, the deed of conveyance

While a common mortgage deed, like any of those of which forms are annexed to this chapter, gives rise to no nice questions of law, it is otherwise with a mortgage which consists of an outright deed of conveyance, and a separate instrument of defeasance. Here numerous questions have arisen, and are answered differently in different States. It may be said, however, that the instrument of defeasance, whatever be its form, must constitute a part of the original transaction. It is not essential that the defeasance be reduced to writing or executed, at the same time with the deed of conveyance. If executed afterwards, but in conformity with an original agreement to that effect, the defeasance and the deed of conveyance will be regarded as one transaction. And if they bear different dates, but are delivered together, they will constitute a mortgage.

Whatever be the date of the instrument of defeasance, if the party who made the deed of conveyance can show by sufficient evidence that the original bargain was that the land should only be mortgaged, and that the defeasance was made to carry out this agreement, it will be held to make a mortgage.

There is no especial rule now universally admitted as to the form of a separate defeasance. The earlier and stricter rule was, that the instrument of defeasance must be of as high a nature as the instrument of conveyance; that is, it must be like that, a deed. But in a majority of the States in which the question has come before the courts, it has been held that any written agreement which amounts in substance to a defeasance, although not a deed, suffices to make the conveyance a mortgage. This may now be considered as the general rule. But in some States the condition or defeasance must be inserted in the deed of conveyance.

In many of the States the courts relieve a party who has made an outright deed of conveyance without inserting any condition or receiving from the grantee any instrument of defeasance, provided he can show even by unwritten evidence that all he intended to make was a mortgage. But on this point the diversity of the decisions is very great. It must suffice to give the rule prevailing in the Supreme Court of the United States. This rule is, that wherever a deed of conveyance is absolute in its terms, but it would be a fraudulent act on the part of the grantee to insist upon its operating as an absolute deed, then the grantor may show, by written or unwritten evidence, that the deed was intended to be a mortgage.

If A makes an absolute deed of his land to B, and C buys it honestly of B, then C cannot be disturbed by A's showing that

there was an instrument of defeasance, or a bargain making it a mortgage, if C had no notice, by record or otherwise, and no knowledge, either of the instrument of defeasance or of the bargain.

The mortgagee has a title to the land; but it is subject to avoidance by payment of the debt. Until such payment, the land is his; and all the mortgagor owns in relation to it is a right to pay the debt and redeem the land.

It is commonly thought that the mortgagor has a right to retain possession until the debt is due and unpaid, and, in fact, he usually does so. But the mortgagee has, in law, the same right of immediate possession as a buyer; and, therefore, if it is not intended that he should have possession at once, the mortgage deed ought to contain a clause to the effect that the mortgagor may retain possession as long as he pays instalments and interest as due, and complies with his other agreements or promises.

Formerly, a mortgagor had a right to redeem his land only before or when the debt became due; for, if he did not pay the money when it was due, he had no further right. Now he can pay or tender the debt only when it is due. But for a long time a rule has been established which allows a mortgagor a longer time to redeem his land after the debt is due; and this is now the law in all our States. This right to redeem is called a right in equity to redeem, or, more briefly and commonly, an equity of redemption; which all courts now regard and protect. The mortgagor may sell this equity of redemption, or he may mortgage it by making a second or other subsequent mortgage of the land, and it may be attached by creditors, and would go to assignees as a part of his property if he became insolvent. The time within which a mortgagor may thus redeem his land is usually three years.

The law regards this equity as so important, that it will not permit a party to lose it by his own agreement. Thus, if a mortgagor agrees with the mortgagee, in the most positive terms, or in any way he can contrive, or for any consideration, that he will have no equity of redemption, and that the mortgagee may have possession and absolute title as soon as the debt is due and unpaid, the law sets aside all such agreements, and gives the debtor his equity of redemption for three years.

Within a few years, however, a way has been found to effect this purpose indirectly, which the law sanctions. Many persons object to lending their money on mortgage, because they will have to wait three years after the debt is due before the land can be certainly theirs. But it is now quite common for the mortgage deed to contain an agreement of the parties, that, if the money or the

interest thereon is not paid when it is due, the mortgagee may, in a certain number of days thereafter, sell the land (providing also such precautions to secure a fair price as may be agreed on), and, reserving enough to pay his debt and charges, pay over the balance to the mortgagor. This is called a power-of-sale mortgage. There are now in some of our States, statutes regulating these power-of-sale mortgages. Of course the provisions of these statutes prevail. But where such statute does not give to the mortgagee the right to purchase the land, he cannot do so; for he is considered in some measure as selling the land as a trustee for the mortgagor, and a trustee who sells land cannot sell to himself; that is, he can never buy the land which he sells. This rule is intended to guard against fraud.

The three years of redemption do not begin from the day when the debt is due and unpaid, unless the mortgagee then enters and takes possession for the purpose of foreclosing the mortgage, as the legal phrase is; by which phrase is meant extinguishing the equity of redemption. If the debt has been due a dozen years, the mortgagor may still redeem, unless the mortgagee has entered to foreclose, and three years have elapsed afterwards.

He may make entry for this purpose in a peaceable manner, before witnesses, as pointed out in the statutes regulating mortgages; or he may bring an action at law to get possession of the land.

If the mortgagor redeems, he must tender the debt, with interest, and the lawful costs and charges of the mortgagee; but he will be allowed such rents and profits as the mortgagee has actually received, or would have received but for his own fault.

One of these other agreements, which is now very common, is that the mortgagor shall keep the premises insured in a certain sum for the security of the mortgagee; or that the mortgagee may insure it, and charge the premium to the mortgagor; and, if there be such an agreement, it should be expressed in the deed. Otherwise, if the mortgagee insures the house, he cannot charge the premium to the mortgagor.

If a mortgagor erects buildings on the mortgaged land, or puts fixtures there, and the mortgagee takes possession of the land, and forecloses the mortgage, he gets all these additions, without pay. ing for them. If the mortgagee puts them on the land, and the mortgagor redeems, he gets the benefit of them all, without paying the mortgagee for them. Such is the effect of the law if there be no bargain between the parties about these things. But they may make any bargain about them they choose to make.