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THE



LAW OF MORTGAGES



OK



REAL AND PERSONAL PROPERTY.



BY



FRANCIS HILTJARD,

AUTHOR OF " THE LAW OK TORTS," ETC., ETC.



" The case of mortgages is one of the most splondid instances in the history of our
jurlsprudenrc of the triumph of equitable principles over technical rules, and of the
homage ivhich those priaciplcs hare received by their adoption in the Courta of Law." —
CuANCELLoa Kent.



FOURTH EDITION, REVISED AND ENLARGED.

IN TWO VOLUMES.
VOL. 11.



BOSTON:
LITTLE, BROWN, AND COMPANY.

1872.

11'



^55X5



vn



Entered according to Act of Congress, in the year 1853, by

FRANCIS HILLIAED,

in the Clerli's Office of the District Court of the District of Massachusetts.



Entered according to Act of Congress, in the year 1856, by

PRAKCIS HILLIARD,

in the Clerk's Office of the District Court of the District of Massachusetts.



Entered according to Act of Congress, in the year 1864, by

FRANCIS BILLIARD,

in the Clerk's Office of the District Court of the District of Massachusetts.



Entered according to Act of Congress, in the year 1872, by

FRANCIS BILLIARD,

in the Office of the Librarian of Congress at Washington.



CAMBRIDGE :
PRESS OF JOHN WILSON AND SON.



CONTENTS.



CHAPTER XXV. p^o.

Foreclosure. — Foreclosure by Lapse of Time, —
Extinguishment of the Right of Redemption by
THE SAME Cause 1-29

1. Definition of foreclosure.

2. Foreclosure and redemption are reciprocal or mutual rights.

3. Extinguishment of the rights of mortgagee or mortgagor by lapse of

time.
11. Statute of Limitations, whether applicable as such.
16. What circumstances will prevent such extinguishment by lapse of

time; disabilities, payments, acknowledgments, &c.
24. Whether the debt secured by mortgage is thereby saved from the

Statute of Limitations ; the debt may be barred, and the mortgage

remain good.

CHAPTER XXVI.

Foreclosure by Proceedings at Law and in

Equity 30-42

1. Foreclosure by bill in equity; strict furcclosnre or sale ; the civil law.
7. Foreclosure by sale; remarks upon the objects and policy of this

practice.
14. Form of the decree as to the time of pa3-ment ; extension of time,

and opening of the foreclosure; decree in the case of iiij~unts, Sec.



CHAPTER XXVH.

Foreclosure in the United States. — Statutory

Provisions and Remedies in the several States 43-87

1. The remedies for foreclosure are generally regulated by statute.

2. The statute must be strictly pursued.



iy CONTENTS.



8. Whether the proceedings must conform to the law in force when the
mortgage was made.

5. Statutes of the several States, and judicial constructions thereof.

6. New Yorlr.
15. Pennsylvania.

18. Delaware.

19. New Jersey.
22. Georgia.

27. South Carolina.

28. North Carolina.

29. Maryland.

30. Mississippi.

31. Florida.
33. Texas.
35. Alabama.
39 a. Louisiana.
40. Michigan.

49. Arkansas.

50. Illinois.
65. Indiana.
74. Ohio.
82. Missouri.
86. Kentucky.
89 a. Iowa.

90. Wisconsin.

93. Minnesota.

94. California.

95. Massachusetts, Maine, New Hampshire, Rhode Island.

100. Massachusetts.

101. Maine.

108. New Hampshire.

111. Rhode Island.

115. Vermont.

117. Connecticut.

CHAPTER XXVIII.

Statutory Protisions relating to the Redemp-
tion OF Mortgages, and Decisions thereupon . 88-102

1. Foreclosure and redemption compared, with reference to statutory

provisions.

2. Massachusetts.

3. Maine.

5. New Hampshire.

6. Suit in the United States court.

7. Construction of the New Hampshire statute.

9. Decisions relating to the mode of tender and rendering an account.

22. Rule as to costs.

25. Payment into court.

27. Claim for rents.



CONTENTS.



CHAPTER XXIX.

PAGE

Concurrent Remedies of the Mortgagee. — Suits
UPON the Mortgage and the Personal Security ;
IN Law and Equity . . . ' 103-114

1. The mortgagee may pursue all his remedies at once; cases illustra-
tive of this principle.

6. Affirmations or qualifications of the rule by statutory provisions in
the United States.

6. New York.
11. New Jersey.

15. Maryland.

16. Pennsylvania.

18. Ohio.

19. South Carolina.

20. Kentucky.

22. California.

23. Iowa.

24. Indiana and Illinois.

CHAPTER XXX.

Foreclosure by Action at Law. — Nature of the
Action, and what is necessary to maintain it. —
Foreclosure in Equity 115-128

1. Various forms of proceeding for foreclosure.

2. Real action. Not governed by the strict rules of real actions. Re-

garded as a suit to enforce paj-ment. Whether it lies against
any one but a tenant of the freehold.

7. Question of jurisdiction, in Massachusetts, as aflfected by the pur-

pose for which the action is brought.

11. The defendant cannot dispute the title of the mortgagee.

12. Nor set up a paramount title of a stranger.

15. The defendant maj- rely upon a tender of the debt.

16. The plaintiff must prove an ouster.

17. Suit in equity for foreclosure, when it does not lie.



CHAPTER XXXI.

Foreclosure, etc. — Parties to suits upon Mort-
gages 129-183

1. Parties at law and in equity.

2. In equitj', all persons interested should be made parties.

4. Application of the rule in case of parties equitably interested.
9. Creditors and debtors.



â–¼i CONTENTS.



13. Joint mortgapjees, &c.

27. Assignees and purchasers.

45. Sureties for the mortgage debt.

51. Other mortgagees; subsequent or prior.

82. Remainder-men.

83. Parties, after the death of mortgagor or mortgagee.
102. Guardians.

105. Husband and wife.

109. Agent.

110. Adverse claimant.

113. Rights of joint defendants as to each other; whether their mutual
claims shall be adjusted before foreclosure.



CHAPTER XXXII.

Foreclosure, etc. — Pleading, Evidence, Decree,
ETC., IN Suits on Mortgages 184-235

I. Pleading; allegations of the plaintiff and the defendant.
34. Set-oflf.

49. Evidence.

71. Judgment or decree.

74. In case of a debt paj'able by instalments.
109. For non-payment of interest.

111. Judgment may be rendered for all that is due at the time of rendering it.
121. Judgment in case of parties jointhj interested.
131. Judgment at law may be framed to meet the equities of the case.
136. Amount of judgment, how determined.
141. Time allowed before final judgment.

144. Judgment or decree for a sale; time allowed to prevent such sale;
equitable apportionment among different estates, &c.

155. Injunction against waste.

156. Miscellaneous points of form.
160. Costs.

175. Receivers.

CHAPTER XXXIII.
Foreclosure Sale 236-273

1. Sale of the mortgaged premises under a decree of foreclosure ;

forms of proceeding.

2. Purchase by the mortgagee himself.

8 a. Necessity and efiect of the Master's report.
10 a. Order of sale of different premises.

II. Distribution of proceeds.
31. Opening of a foreclosure.

62. Miscellaneous points of practice. Effect of the sale upon the rights
of the parties.



CONTENTS. Vll



CHAPTER XXXIV.

PAOS

Foreclosure by Entry without Suit 274-285



1. Open and peaceable entry.

2. Ciises decided upon the mode and effect of such entry.
22. Waiver of an entry, and the rights thereb}- acquired.



CHAPTER XXXV.



Foreclosure in Case of the Insolvency of the
Mortgagor 286-291

1. Insolvency of the mortgagor's estate after his death.
8. Insolvency or bankruptcy of the mortgagor during his life ; pro-
ceedings of insolvency courts.



CHAPTER XXXVI.

Effect of Foreclosure upon the Debt ; how far
it operates as Payment ; Suit for a Balance ;
Opening of the Foreclosure 292-307

1. General effect of foreclosure.

2. Foreclosure is payment pro tanto ; whether an action can be brought

for a balance, and whether the foreclosure is thereby opened.

3. Opinions of elementary writers.
5. English decisions.

9. American decisions.
35. Miscellaneous points.

CHAPTER XXXVII.

Sale, etc., of Equities of Redemption on Execu-
tion 308-339

1. Equity of redemption liable to be taken on execution.
5. Statutory provisions of the several States upon this subject; mis-
ccUnneous decisions as to the mode of levying executions.

22. 'Whether an equity of redemption shall be sold, or set off by
appraisement; how the mortgage shall be estimated in an ap-
praisement ; defects and errors in this respect.

28. Effect of the sale of an equity of redemption, where the mortgage
has been extinguished.

34. Mode of levying in case of a fraudulent mortgage.

37. Whether a lev}' may be made upon a portion of the mortgaged
premises.

40. Effect of the officer's deed to a purchaser; whether registration
is necessary to pass a title.



Viii CONTENTS.



43. WheUier the mortgagor can defend against a suit for the land, and
on what grounds.

48. Kcdeniption of an equity of redemption sold on execution.

64. Nature of the title remaining in the mortgagor after a sale on
execution; whether liable to legal process or voluntary transfer.

67. Mode of proceeding in case of several processes against the same
« debtor; disposition of the proceeds of sale, &c.

76. Whether seisin of the mortgagor is necessary, to authorize an ex-
ecution sale of his right.

78. Right of redeeming subsequent mortgages; whether liable to be

taken on execution.

79. Miscellaneous points.

CHAPTER XXXVin.

Mortgages of Personal Property. — Nature,

Requisites, etc., of such a Mortgage .... 340-364

1. Mortgages of real and personal property, compared and distin-
guished.

3. Rights of the mortgagee as to possession.

4. Not perfected without the assent of both parties.

5. Form of a mortgage; no particular language is necessary; valid

without a seal ; partnership property.
13. Parties to a mortgage.
15. Absolute bill of sale, and defeasance.
18. Parol evidence; whether admissible to prove an absolute bill of

sale to be a mortgage.
21. Power of sale.

CHAPTER XXXIX.

Consideration of a Mortgage. — The Debt or

Liability Secured 365-377

1. Mortgages of real and personal estate compared.

2. Proof of consideration.

3. Pre-existing debt.

4. Mortgages of tnc/e»n«7(/. Condition, how stated; parol evidence, &c.
11. Construction of the terms used to describe the mortgage debt.

13. Mortgage to secure future advances.



CHAPTER XL.
Nature of the Property Mortgaged 378-384

1. Whether personal or real — transient or penshabk property.

3. Building, as distinct from, or connected with, land.

4. Grass.

5. Growing wood.
7. Fixtures.

15. Chattels real.



CONTENTS. IX



CHAPTER XLL

FAOB

Mortgage of Siiirs 385-402

1. The marilimi' law.

2. Form of tlie mortgage; English statutes of registry and enrolment;

discussions as to their cftect upon the validity of the mortgage of
ships.

10. Not applicable in (lie United States.

11. Decided cases; effect of a mortgage upon the title of the ship;

wiiether the mortgagee is liable for repairs and supplies, before
taking possession.

16. When the mortgagee becomes liable.

17. Whether liable to the master.

18. Whether the mortgugee may claim the profits of the ship.

20. Delivery and possession, when unnecessary; hypothecation ; distinc-
tion between a mortgage and bottomry, or other maritime con-
tract ; mortgnge by parl-oioners.

31. Hypothecation by a master.



CHAPTER XLH.

Description of the Profertt Mortgaged. — What

THINGS WILL PASS UNDER A GkNERAL DESCRIPTION'.

— Property subsequently acquired. — Parol Evi-
dence TO EXPLAIN the MORTGAGE 403-420

1. General description ; what things will pass thereby ; evidence as

to place and identity; eftect of a schedule.
4. Mortgage of property subsequently acquired. Ilulo in Enghind

and in the several United States.

24. Title by accession.

25. Title by confusion or intermixture.

26. Issue or offspring ; whether subject to the mortgage security.



CHAPTER XLin.

Concurrent or Successive Mortgages of the same

Property •121-427

1. Concurrent mortgages.

2. A second mortgage is valid against third persons.

3. Whether a second mortgagee is entitled to immediate possession,

or can maintain trover; proof of the consideration of a second
mortgage.

5. Distribution of the proceeds of mortgaged property between different

mortgagees.

6. When a subsc(iuent mortgage shall have precedence.
8. Mortgage, subject to other liens.



CONTENTS.



CHAPTER XLIV.

PAQB

Dr.LIVKKY AND POSSESSION ; WHETHER NECESSARY TO

THE Title ov a Mortgagee 428-452

i. General remarks upon the subject of absolute or conditional sales
witliout clianjje of possession. Effect of registration.

3. Delivery and possession are unnecessary between the parties, or as

against trespassers.

4. Prevailing doctrine in relation to creditors, &c. Possession is

merely prima facie evidence of fraud. Language of the courts
upon that subject.
13. English cases.

15. American doctrine and cases.

16. United States courts.

17. New York.

23. Massachusetts.

24. Maine.

25. Vermont.

26. Connecticut.

27. New Hampshire.

28. North Carolina.

29. Maryland.

30. Alabama, Virginia, South Carolina.

31. Missouri.

32. Illinois.

33. Michigan.

34. Tennessee.

35. Ohio.

36. Indiana.

37. Kentucky.

38. Property not easily susceptible of delivery.

40. Who may take advantage of the want of delivery; purchasers,
creditors, assignees, &c.

44. Who may take advantage of a delivery.

45. When the mortgagee has a right of action for the property or its

value.

CHAPTER XLV.

Delivery and Possession. — Effect of a Stipula-
tion IN THE Mortgage that the Mortgagor
MAY retain Possession 453-467

1. Absolute sale and mortgage compared, with respect to delivery.

Express agreement in the mortgage for the mortgagor's continued
possession.

2. Jlortgage with an agreement that the mortgagor may sell or consume

the property; whether fraudulent ^jo" se.

6. How far a mortgagor allowed to remain in possession has authority

to sell the property.

7. Effect of an agreement for the mortgagor's possession upon the

mortgagee's right to take or sue for the property.



CONTENTS. XI



CHAPTER XLVI.

PAOB

Registration of Mortgages 468-502

1. General object of registration.

2. Unnecessary between tbe parties, &c.

8. A substitute for delivery; effect of the mortgagor's continued pos-
session after registration.
7. What constitutes a mortgage requiring registration; form of the
instrument and nature of the property.

13. Whether registration is necessary as against parties having notice;
what kind and amount of information is sufficient to constitute
notice.

27. Place of registration ; removal of the mortgagor from one State
or town to another.

43. Mode or form of registration.

64? Certificate of registration ; its effect.



CHAPTER XL VII.

Liability of Mortgaged Personal Property for
Debts. — Mortgage of Property subject to
Legal Process, and Effect thereof 503-531

1. Distinction between personal and real property. Whether the
mortgagor's iiiterest is liable to be taken in exiccution.

14. Mode of selling mortgaged property on execution.

15. Statutory provisions in Massachusetts as to the attachment of mort-

gaged property ; construction and application thereof.

24. Mode of stating an account and demanding payment by the mort-
gagee.

32. Time of demanding payment, &c. ; what is reasonable time.

35. The statutes do not apply to nw execution. â– 

36. Effect of proceeding under the insolvent law, or of a receipt for

property attached.

37. Statutes of other States.

43. Attachment of the mortgaged property by the mortgagee.

46. Of other property.

47. Mortgage of property attached.

CHAPTER XLVIIL

Assignment, Payment, Discharge, and Extixouisii-

MENT OF Mortgages of Personal Property . . 532-545

1. Assignment of a mortgage.

9. Extinguishment of a mortgage; 7>fJ»/me7!<.

18. Discharge or release.

21. Whether a mortgage is merged in other security for the same debt.

24. Waiver.



Xll CONTENTS.



CHAPTER XLIX.

PAGE

Void and Voidable Mortgages of Personal Prop-

KRTY 546-558

1. Tlie same rules apply, generally, to real and personal property.

2. What title is necessary in the mortgagor.

6. Misrepresentation or concealment by the mortgagee.

7. Usury.

10. Illegal consideration. .

10 a. Fraud.

14. Fraud against the bankrupt and insolvent laws.



CHAPTER L.

Foreclosure and Redemption of Mortgages 'Of

Personal Property 559-573

1. Effect of a breach of condition; whether the mortgagor has a right
of redemption; mortgage and 2>ledge compared.

3. General language of the courts upon this subject.

10. Decided cases.

14. Conditional assignment of a mortgage; whether redeemable.

18. What will prevent a forfeiture by breach of condition; paj'ment, waiver, &c.

23. Forl'eiture in case of joint mortgagees.



CHAPTER LI.

Foreclosure and Redemption. — Remedies op Mort-
gagee AND Mortgagor in relation to the Debt
of the Security 574-592

1. General rule as to remedies.

2. Foreclosure by sale, &c.

10. Remedy of the mortgagee at law; suit for the property; concurrent remedies.

12. Whether the mortgagor can maintain a suit for the property.

15. Whether a mortgage creates a personal liability.

16. Whether it prevents a personal liability.

18. Lapse of time; effect upon the title.

19. Parties to a suit in equity.

29. Liability of mortgagee or mortgagor to account.

30. Receivers.

40. P'oreclosure sale.

CHAPTER LII.
Conditional Sale of Personal Property .... 593-599



CONTENTS. XIU

APPENDIX.

No. I.

FAOB

Pawn or Pledge. — Hypothecation 601-619

1. Mortgage and pledge compared and distinguished. Definitions of a
pledge per se, and as contrasted with a mortgage. Tlie two forms
of security considered in connection.

21. Terms of a pledge ; power of ."ale.

22. Property pledged.

30. Parties; assignment, &C.

34. Delivery.

35. Liability secured; future debts, interest, &c.
38. Remedies, foreclosure, sale, and redemption.
55. Hypothecation.

No. II.

Statutory Provisions in ri:l.a.tion to Mortgages

OP Personal Property 620-658



INDEX 661-703



INDEX TO €ASES CITED.









PAOB


A.




Anderson v. Austin


48, 247




PACK


V. Davies


243


Abadie v. Lolicro


211


V. Hooks


507


Abbot V. Baiifield


85, m


Anding v. Davis


171


Abbott V. Godfrey


170


Andrews v. Jones


210


V. Goodwin 358, 415


462, 482


V. Scotton


54, 111, 305


V. Stratton


41G


Anson v. Anson


156


V. Sturtevant


31'J


Anthony v. Jiutler


496, 501


Abel V. Wilder


328, 337


V. Nye


178


Afkley v. Finch


561


Appeal, &c.


249


Adair v. Wright


235


Aj)pk'ton V. Bancroft


530


Adams r. Brown 91


211, 218


Archdeacon v. Bowes


165, 181, 233


V. Essex


212


Armstrong v. Pratt


144


V. l*aynter


135, 136


Arnot V. McClure


240, 241


V. Wheeler


456


Ashhurst i'. The Montoui


, &c. 31, 49


Adler v. Claflin


463


Ashton V. Milne


0, 11, 13


^tna I'. A Id rich


488


Aslnvortli v. Dark


582


V. McCorniick


262


Aston V. Boniayne


237


Aggas V. Pickerell


15, 16


Astor V. Miller


252


Aiken v. Gale


115, 118


V. Turner


266


Albany, &c. v. Stevens


58


Atchison v. Surguine


172


Alden v. Lincoln


456, 465


Atkins V. Sawyer


310, 527


Aldrich v. Martin


421, 591


Atkinson v. Hall


54


V. Sliarp


63


V. Maling


375, 455


Alexander v. Doran


193


V. Richardson


236, 249


?'. Frarg


175


Attleborough ;•. Commissioners 349


V. Greenwood


325


Attorney-General v. Wins


tanley 103


Alexandrie v. Saloy


232


Atwater v. Kinman


58


Allen V. Alien


243


V. Mower


358, 359


V. Clark


97


V. Walker


193


V. DeWitt


46


Augur V. Winslow


269


V. McCalla


483


Avendale v. Morgan


611


V. Parish


313


Averett v. Ward


168


V. I'arker


208


Averill v. Irish


518, 519


V. Sliackelton


195


Ayres v. Shannon


67


r. Taylor


110, i:;o


V. Waite


11, 275


Almy V. W'ilbur


25, 59S






Ambler v. Warwick


580






American, &c. v. Oakley


254


B.




V. Ryerson


208






Ames V. Ames


198, 218


Baasen v. Filers


205


V. Phelps


502


Babbitt v. Bowen


167, 188


Amidown v. Peck


116, 125


Babcock v. McFarland


845


Ainory v. Fairhanks


297


V. Perry


71, 152, 228


V. Francis 286,


287, 288


Bacon v. Kimniel


559



XVI



INDEX TO CASES CITED,



PAGE

Bacon v. Leonard 334

I'. Mclntire 19

Badlani v. Tucker 612

Bag-; r. Jeionie 549, 552

Bajiley v. Bailey 319, 834

Bahr v. Arndt 70

Bailey v. Carter 6, 16

V. Gould 59

V. Merritt 254

V. Murphy 59

V. Mj-rick 89

V. Willard 94

Baird v. McConkey 190, 205

Baker's Case 290

Baker v. Bisliop Hill Colony 378

V. Lehman 210

V. Shepard 167

Balch V. Onion 26

Baldwin v. Allison 76

V. Norton 27

Ballard r. Anderson 309

V. Jones 356

V. Koons 188

Ballinger v. Waller 237

V. Worley 197

Bank, &c. v. Arnold 2^5

V. Chester 218

V. Crary 379, 504, 546, 560,

562

V. Dubuque, &c. 619



V. Guardin
V. Jones
V. Milton
V. Patterson
V. Tarleton
V. Vance
Bard v. Fort
Barker v. Bell
r. Buel
V. Parker
V. Stacy
Barnard v. Cushman
V. Eaton
V. Moore
Barnes v. Lee
Barnett v. Mason
Barnhart & Koch v
Schuylkill Coal Co,
Barraque v. Manuel
Barron v. Kennedy

V. Martin
Barrow v. Paxton
Barrows v. Turner
Barry v. Bennett
Bartels v. Harris
Bartlett v. Boyd
V. Gale
Barton v. May
Baskins v. Shannon
Basse v. Galleprger
Bassett v. McDonel
V. Mason



344, 444

604

332

337

251

347, 376

176

324

368

331

490

90

290, 291, 412

377

39

348

N. Y. &

341

221

204

23

434, 457, 602, 605

485

406, 425, 544

353, 454

176

253

188

*423

208

73

301



Batcheldor v. Taylor
Batchelor v. Middlcton
Bates V. Conrow
V. liuddick
V. Wilbur
Battle V. Griffin
Baxter v. Manning
Bayaud v. Fellows
Beach v. Cooke
V. Derby
Beall V. Williamson
Boals I'. Cobb
Bean v. Whitcomb
Beauchamp v. Leagan
Beavin v. Gove
Beckford v. Kemble
Beckley v. Munson
Beckwith v. Windsor, &c.
Bedford v. Duly
Beebe v. O'Brien
Beedle v. Cook
Beekman v. Frost
V. Gibbs
Beeman v. Lawton
Beers v. Hawley

V. Waterbury
Bein v. Heath
Belingall v. Gear
Belknap v. Wendell
Bell V. Bank, &c.
V. Carter
V. Shrieve
V. Shrock
V. Woodward
Bellamy v. Cockle
Belloc V. Rogers
Bellows V. Stone
Belmont v. O'Brien
Benedict v. Gilman
Benner v. Troughton
Bennett v. Calhoun
V. Conant
V. Cooper
V. Matson
V. Taylor
V. Williamson