Page:Harvard Law Review Volume 4.djvu/29

THE STORY OF MORTGAGE LAW. I3 high authority that it was printed after the author's decease in the law reports,^ a fact which would seem to indicate the con- currence of the court. This paper laid it down explicitly that the mortgagee was the legal owner of the land, and that the farmers and householders throughout Massachusetts, whose lands were mortgaged, were not the owners of their farms and their houses, but had mere equitable estates. It is quite safe to assume that this opinion was hc^ld by the learned in the law throughout the country. Theoretically it was law. Gradually the question came up for decision in the different States, and, contrary to all theory, it was everywhere held that in this country a mortgage deed, although in the form of a common-law deed upon condition, amounted before breach to nothing but a pledge of the land, and gave the mortgagee simply a pawn or a hypothecation of it. But while it was held in almost all, if not all, of the States that as to every one but the mortgagee the mortgagor was the legal owner, and the mortgage was a lien, it was nevertheless held in Massachusetts and in some other States that the mortgagee was, in accordance with the language of the deed, entitled to immediate possession even before breach, unless possession were reserved to the mortgagor. It is singular that courts which were prepared to ignore the language of a mortgage deed, in so far as it professed to divest the mortgagor of title, were not prepared to ignore it in the subsidiary matter of possession. In New York and other States the courts carried the doctrine that a mortgage was a pledge, to its logical results, and denied to the mortgagee the right of immediate possession. It is plain from the language of the early Massachusetts cases that the declaration by the courts of a right of immediate possession in the mortgagee was a surprise to the people of the State. Within the last few decades a power of sale has very commonly been introduced into mortgages; some of the States control judi- cially the exercise of the power, and in all the States the power is subjected to the same equitable control which is exercised in general over matters of mortgage. In view of the fact that a lien on land is a form of interest con- stantly recognized, familiarly understood, and capable of being clearly expressed, and that a lien voluntarily created by contract, for security, does not necessarily differ in this respect from the 1 8 Mass. 551.