30 Iowa 268 | Iowa | 1870
The first point of inquiry relates to the character of the interest or estate, in lands conveyed by a mortgage. Does the mortgagee acquire an inheritable estate ? t
The uniform language of the books is, that by a mortgage at common law the legal title is conveyed to the mortgagee, who is vested with the legal estate and freehold of inheritance. 1 Greenleaf’s Cruise Dig. 570. But this rule of the common law is not recognized by the weight of the American authorities. In this country it may be considered the prevailing rule that the mortgagee is the owner of the lands mortgaged, and retains the inheritable estate therein. At common law the performance of the condition of defeasance of a mortgage was considered to operate by divesting the estate in the mortgagee which was conveyed by the instrument. The doctrine of the American authorities, in effect, is, that it serves to vest, by its breach, the estate in the mortgagee, which, before, was in the mortgagor. The doctrine seems to be in harmony with the intent of the transaction when land is mortgaged. Its object is to pledge the land for the debt, and is nothing more than the creation of a security. The interest which the mortgagee holds is a lien upon the land for the debt, which may, by certain proceedings, ripen
It may be admitted that this doctrine is anomalous. That a legal conveyance will not pass a legal title is not in accord with legal principles. In the contrary view, however, an anomaly is found which is quite as noticeable. A legal estate, which is vested by a legal conveyance, is defeated by the act of the grantor after the title has passed from him. Yet this is the case with a mortgage under the doctrines of the common law, for, if the debt be paid before forfeiture or foreclosure, the mortgagee’s title ceases. Anderson v. Neff, 11 S. & R. 223; Cameron v. Irwin, 5 Hill, 276; Goodwin, v. Richardson, 11 Mass. 470.
It may be said that the mortgage conveys a base or determinable fee, and that the estate created by the mortgage is so classed among estates at common law. But this fact does not remove the difficulty in harmonizing the common-law doctrine with the principles applicable to mortgages as they are now regarded. As between the mortgagor and mortgagee, the latter, for the purpose of enforcing his lien, may exercise many rights of ownership, but it will be remembered that these rights are exercised to the end that the security may be enforced, and not because the mortgagee is vested with the ownership of the land,.
The views above expressed are well supported by the principles of many decisions. "Without attempting to enter upon an examination of any of them, or to cite all that bear upon - the questions involved, a statement of points ruled will sustain our conclusion.
Before entry and foreclosure by the mortgagee, the mortgagor is the owner in law and equity of the mortgaged premises. 1 Smith’s Lead. Cas. (Hare & Wallace’s Notes) 571; Hall v. Saville, 3 G. Greene, 37; Courtney v. Carr,
A mortgagor is a freeholder of the mortgaged estate. 4 Kent’s Com. 160; Runyan v. Mersereau, 11 Johns. 534; Wilkins v. French et al., 20 Me. 111,
He may maintain a real action for the land against a stranger, and the mortgage cannot be set up as a defense thereto. 1 Smith’s Lead. Cas. (Hare & Wallace’s Notes) 570; Den v. Dimon et al., 5 Halst. 156; Lessee of Perkins v. Dibble, 10 Ohio, 433.
Upon the death of the mortgagee his interest in the property, being personalty, goes to his representatives and not to his heirs; but the heirs of the mortgagor, upon his death, take the estate. Bates v. Ruddick et al., 2 Iowa, 423; Newman v. De Lorimer, 19 id. 244; Burton v. Hintrager, 18 id. 348; Iglehart v. Merreken, 8 Gill. & J. 39; Jewett v. Patridge, 3 Fairf. 243; McCall v. Lenox, 9 S. & P. 302; Smith v. Dyer, 16 Mass. 18; Dewey v. Van Dusen, 4 Pick. 19; Doe ex dem. Duval’s Heirs v. McLoshy, 1 Ala. (N. S.) 708.
The estate of the mortgagor in the lands is real property, and is conveyed, devised and taken upon legal process, as such. 1 Smith’s Lead. Cas. (Hare and Wallace’s Notes) 571; Miami Ex. Co. v. Bank of U. S. et al., Wright, 249; Jackson v. Willard, 4 Johns. 41; Wellington v. Gale, 7 Mass. 138 ; Ford v. Philpot, 5 Har. & J. 312; Ewen v. Hobbs, 5 Met. 3; Davis v. Anderson, 1 Kelly, 177.
The instructions to the jury given by this court are in harmony with the foregoing views. In effect they hold that the defendant, claiming under the mortgage, did not, without entry, acquire title to the land. The jury were required to find the fact of entry, and, if found, the further fact of waiver instructions which are
The instructions asked by defendant upon the points above considered were properly refused, being in conflict with the law. The refusal of instructions upon other points is not made the ground of objection in the brief of counsel, and, therefore, need not be considered.
Affirmed.