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prof s c pratihar ( urologist &legal studies)     17 September 2008

once a mortgage always a mortgage

sir,

           is this maxim a absolute phenomenon ?



Learning

 2 Replies

Shree. ( Advocate.)     18 September 2008



Dear Dr,


  For your kind reference;




It is an universal rule in equity that once a mortgage, always a mortgage -- every attempt, therefore, to defeat the equity of redemption, must fail.



As to the form, such a mortgage must be in writing  when it is intended to convey the legal title. It is either in one single deed which contains the whole contract - and which is the usual form - or, it is two separate instruments, the one containing an absolute conveyance, and the other a defeasance. But it may be observed in general, that whatever clauses or covenants there are in a conveyance, though they seem to import an absolute disposition or conditional purchase, yet if, upon the whole, it appears to have been the intention of the parties that such conveyance should be a mortgage only, or pass an estate redeemable, a court of equity will always so construe it.



As the money borrowed on mortgage is seldom paid on the day appointed, mortgages have now become entirely subject to the court of chancery, where it is an established rule that the mortgagee holds the estate merely as a pledge or security for the repayment of his money; therefore a mortgage is considered in equity as personal estate.



The mortgagor is held to be the real owner of the land, the debt being considered the principal, and the land the accessory; whenever the debt is discharged, the interest of the mortgagee in the lands determines of course, and he is looked on in equity as a trustee for the mortgagor.



An equitable mortgage of lands is one where the mortgagor does not convey regularly the land, but does some act by which he manifests his determination to bind the same for the security of a debt he owes. An agreement in writing to transfer an estate as a security for the repayment of a sum of money borrowed, or even a deposit of title deeds, and a verbal agreement, will have the same effect of creating an equitable mortgage.



A mortgage of goods is distinguishable from a mere pawn. By a grant or conveyance of goods in gage or mortgage, the whole legal title passes conditionally to the mortgagee, and if not redeemed at the time stipulated, the title becomes absolute at law, though equity will interfere to compel a redemption. But, in a pledge, a special property only passes to the pledgee, the general property remaining in the pledger. There have been some cases of mortgages of chattels, which have been held valid without any actual possession in the mortgagee; but they stand upon very peculiar grounds and may be deemed exceptions to the general rule.



It is proper to, observe that a conditional sale with the right to repurchase very nearly resembles a mortgage; but they are distinguishable. It is said that if the debt remains, the transaction is a mortgage, but if the debt is extinguished by mutual agreement, or the money advanced is not loaned, but the grantor has a right to refund it in a given time, and have a reconveyance, this is a conditional sale. In cases of doubt, however, courts of equity will always lean in favor of a mortgage.

prof s c pratihar ( urologist &legal studies)     18 September 2008

dear shree,


                       like me many will learn from your detailed submission.substantial points i could gather is that----this maxim means that since a mortgage is single and indivisible,there can be no additional contract so as to preclude the mortgagor fromredeeming.  with such height of law --forum will serve as university ----my expectations only .thanks a lot.


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