mortgage.

in the usual form for conveying land, with a condition of defeasance, either as part of the original deed or by a sepaForms of rate paper duly executed. In some States, however, as well as in England, statutory forms have been adopted more nearly corresponding to the real contract. These statutory forms are of comparatively recent date and exist in nearly half the States of the Union. These are brief forms, declared by statute to be good and effectual. They do not invalidate the older forms, but may be used as substitutes.

What has been said hitherto relates to the formal legal mortgage, required everywhere to be executed with the formalities of conveyances of land. There are numerous equitable mortgages recognized and enforced as such by courts of equity. Except in New Hampshire and Georgia, an absolute deed, if really intended as a mortgage, will, between the parties, be held as such. An absolute deed with an agreement to reconvey, if intended as a security, mortgage by deposit of title deeds (the latter of slight importance in this country by reason of our registry system), and any contract intended to create a security are given the effect of a mortgage as between the parties. It is impossible here to go into the detail of the development in this respect, but equitable mortgages are the result of the broad application of the principle adopted by the English Chancery, that the court would look to the real nature of the contract. It followed logically that the same principle which would give effect to a formal legal mortgage only for the purpose of security, would also make all agreements intended to create a security effective for such purpose, always provided the rights of innocent third parties did not intervene.

Here we must bring this brief review to a close. The great body both of the substantive and remedial law of

The modern mortgage

a creature

mortgages of Real Property, embarrassing in its quantity and confused in its statement when considering the question as a whole, yet in each separate jurisdiction practically harmonious, though not

of Equity.

always logically consistent, has resulted from the struggle of the chancery courts so to mould the formal legal mortgage as to make it effective as a security and just both to the debtor and creditor, having reference to the primary idea of security alone. The soundness and beneficial effects of the doctrines adopted by the Court of Chancery in the seventeenth century are attested by the constant tendency in courts of common law and by statute to ignore and even wipe out all ideas based upon the notion of a legal conveyance upon

condition.

It is generally admitted that the fundamental equitable doctrines on which our law of mortgages is founded were derived from the Roman law. That system passed through a process of development quite analogous to that which has in part been here stated. But our own law, as a system, has not yet reached the stage which the Roman law reached in the Corpus Juris Civilis; 1 our process of development has differed in form, and we still preserve the distinction between real and personal property. The transition from the combined theory to the equitable theory alone, so far as it has taken place, has been mostly by legislation, and the completion of this transition must be by legislation. But the final results will not differ greatly from the results reached in the Roman law. The definition taken from the Louisiana Code, itself derived from the Roman law, will already practically apply to the great majority of our States. The equitable doctrine will finally prevail, because it is founded in reason and is ample for the purposes a mortgage is intended to secure.

It is not to be forgotten that the law of mortgages as it is now practically understood everywhere, and as it is without qualification wherever the equitable doctrines alone prevail, is the creation of the Court of Chancery; that the expansion of the system by judicial decision is simply the working out of the corollaries and doctrines implicitly contained in the fundamental equitable notion of the equity of redemption, as 1 Markby, Elements of Law, 5th ed., chap. xi.

occasion has arisen in litigating the relative rights of mortgagee and mortgagor; and finally that the legislation of recent years is in great part but the formal recognition and adoption of principles originating in the English Chancery.

The law of mortgages is practically a department, and one of the most important departments of equity jurisprudence. Writing prior to 1830, Chancellor Kent said of the rights of the mortgagor in Equity, "Not only the original severity of the common law, treating the mortgagor's interest as resting upon the exact performance of a condition, and holding the forfeiture or the breach of a condition to be absolute, by non-payment or tender at the day, is entirely relaxed; but the narrow and precarious character of the mortgagor at law is changed, under the more enlarged and liberal jurisdiction of the courts of equity. Their influence has reached the courts of law, and the case of mortgages is one of the most splendid instances in the history of our jurisprudence, of the triumph of equitable principles over technical rules, and of the homage which those principles have received by their adoption on the courts of law."1

These words have often been quoted. They are of greater force now than when written. Were the distinguished chancellor writing to-day, after seventy years of legislation, he might truthfully say that the case of mortgages is a splendid instance not only of the homage which these equitable principles have received by their adoption in the courts of law, but still more, of the homage they have received by their formal enactment as written law by the legislatures of so many States.

14 Kent's Commentaries, 158.

VIII

WILLS

1701-1901

BY LEONARD M. DAGGETT, LL.B.

No department of the law dealing with property rights is of more vital interest to every one than that concerning the succession to property of a decedent. Of this law, that which deals with succession to the property of an intestate is exact in its operation, because statutory. It is not the same in all places, nor has it been the same at all times in any one place. Primogeniture by the English law, the double portion to the eldest son by the old Connecticut law, the equal division among all children by modern American law, are widely different from one another; the surviving husband or wife may receive different portions in different jurisdictions; brothers and sisters of the half blood may be recognized in one jurisdiction and not in another; — yet, with all these differences, intestate succession is certain. That is, having given the fact of intestacy and the location and character of the decedent's property, the rights of all persons therein are known and are enforceable. On the other hand, from the moment when the property owner, anticipating death near or remote, attempts legally to exercise control over his property after his death, the ultimate possession of such property and the rights of each one of his heirs and devisees or legatees become almost the plaything of accident and uncertainty.

The policy of the law, or, to speak more correctly, the spirit of our race and time, is that one may do as he will

with his own; that he may for himself weigh his obligations, even to his own family. To enjoy this right fully, he must be permitted to exercise it in secret, and so that the exercise may at any time be revoked or its effect altered by him at will. To give the widest effect to the intention of the actor, the law must subject him to as little restriction as possible in method; it must permit and give effect to informality. Some arbitrary formalities are necessary, however, in order that one may so express his intention that authenticated evidence of such intention will be available after his death. The manner in which this may be done is one concern of the law.

Interpretation.

Another concern of the law is to give effect to the intention after the testator's death, to apply the will to the property. In such application we encounter not only difficulties of interpretation, but also what has been termed an ellipsis of intention, when the testator has failed to frame a comprehensive scheme. The more remote in time his death may be, the greater chance there is that intervening changes may occur in his property, in his domestic relations, in the persons who might have been or were the objects of his bounty; the more chance, too, that there may be a change in the testator's capacity, or a change in his residence, or an accident to the physical evidence of his intention, the will itself.

The law concerning wills, therefore, may be roughly classified or divided under the following heads: (a) the power to dispose by will; (b) the form in which the will may be made and evidenced; (c) limitations upon the freedom of disposition; (d) the effect of subsequent acts of a testator, or of subsequent events; (e) giving effect to the will—its application to the property of the decedent.

The aim of this chapter is not to state or discuss the law of wills in all its applications, but, having in mind this fundamental classification, to look at the conditions influencing the growth of our American law and some features of its development.